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

Uili and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1968 (24 June 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2796
Re:Victor Uili
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 June 2022
Place:Sydney

The decision under review is affirmed.
................................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – where applicant will be returned to a country where he has not lived for any extended period of time – links to the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Nystrom [2006] HCA 50
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 June 2022

Mr Victor Uili (the Applicant) was born in 1998 and is 24 years of age. He was born in the independent nation of Samoa[1] but holds citizenship as a citizen of New Zealand/Aotearoa.[2] At the age of eight years, in 2006 he arrived in Australia from Samoa with his adoptive parents. Since that date he has left Australia on three occasions, twice to visit Samoa, and once (for a family holiday aged 10 years, December 2008 to January 2009) to visit New Zealand.[3]
[1] Samoan birth certificate, G-documents at 119.
[2] Ibid at 118, New Zealand passport.
[3] Ibid at 196.
The Applicant first started offending at a young age (as set out below) culminating in his appearance before the Local Court in May 2020 when he was convicted of the offences of “robbery while armed with a dangerous weapon”, “larceny” and “aggravated break and entry”. On conviction he was sentenced to a term of imprisonment of five years with a non-parole period of two years and six months.[4]
[4] Ibid at 27-28.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[5] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[5] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, of which he was notified on 9 March 2021.
As provided for under the Act, the Applicant made “representations” on the same day (9 March 2021)[6] for the revocation of the cancellation decision. On 5 April 2022 a delegate of the Minister decided not to revoke the cancellation.[7]
[6] G-documents at 198.
[7] Act s 501CA(4).
On 6 April 2022 the Applicant then appealed to this Tribunal for a review of that decision and the matter was heard on 7 June 2022. The hearing was conducted with the parties present in person.
Under paragraph 500 (6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance that date is 28 June 2022.
The Tribunal was concerned that the Applicant’s application appeared to have been completed by, or with the assistance of, South West Migration and Legal Services[8] (SWMLS) who in response to the question “[w]hy do you claim the decision is wrong?” stated simply that the Applicant “is of good character.”[9]
[8] G-documents at 3.
[9] Ibid at 5.
No reasonable legal or migration advisor could have given such a reason as, by statutory definition, the Applicant fails the character test, and it would be impossible for the Tribunal (or any other decision-maker) to find otherwise.
As a result of its concerns in relation to this, and an indication from SWMLS (who had notified they were ceasing to act for the Applicant) that the Applicant may wish to withdraw his application, the Tribunal conducted a Telephone Directions Hearing with the parties on 26 May 2022. Being unrepresented, the Tribunal explained to him, in some detail, the provisions of the Act and the relevant Ministerial Direction and invited him to provide some written statement of why he believed the visa cancellation should be revoked and any material which might support that contention, including references or letters of support from family and friends. He was advised, in writing that he should do so by 1 June 2022.[10]
[10] In order to meet the “2-day rule” in subsection 500(6H) of the Act. Tribunal Direction dated 26 May 2022.
In the event, no such material was provided by the Applicant and as a result, the only material constituting representations before the Tribunal were those which were before the Delegate as provided on 9 March 2021, supplemented by the Applicant’s evidence at the Tribunal hearing.
THE APPLICANT’S PERSONAL NARRATIVE
As noted, the Applicant was born in Samoa and arrived in Australia aged eight years. There is some degree of confusion about his parentage in the documents. His birth certificate lists his father as Pisaimalo Uili and his mother as Lei Mamoe.[11] However, there is a report by NSW Department of Justice (the Report) which states that his parents were Beleti and Solate Uili and that:[12]
At 8 years of age, Victor's paternal Uncle, Pisa Uili and his wife, Lei Uili travelled to Samoa and arranged to adopt Victor. Victor has no recollection of meeting his adoptive parents prior to that date and was unaware he was being adopted by them until it had been arranged.
[11] G-documents at 119.
[12] Further Summonsed Material at 409.
The Tribunal understands that such intra-family adoptions are not uncommon in the Samoan community and proceeds on the basis that the Applicant’s reference to his mother and father are to his adoptive parents.
The Applicant was not at all forthcoming with details of his family but from what can be garnered it appears that he has four older adoptive or half-brothers and similarly two sisters. In the Applicant’s Personal Circumstances Form he lists only two of these brothers.[13]
[13] G-documents at 112.
It is also unclear as to the nationality status of these family members as the Applicant claims that his parents (given as Lei and Pisaimalo) and his two “brothers” (Avia and Faoa) are Australian citizens. There is no evidence that this is the case nor, in the event that it is, why the Applicant would not have acquired Australian citizenship.[14]
[14] Idem.
The Report records that the Applicant claims to have had a difficult childhood, not fully accepted by his adoptive siblings and subject to what he described as regular and severe “hidings” from all members of his family. He advised “I’ve been abused my whole life”.[15]
[15] Further Summonsed Material at 409.
It appears that the Applicant had behavioural problems at school and ran away from home on several occasions. On some occasions he was rendered homeless by being kicked out of home by his adoptive mother.
“Victor advised that he started running away from home as he did not like being there. He stated that at one point he returned and started working in scaffolding. At this time he reported that he was required to give 90 percent of his pay to his adoptive family as some of his older brothers were still in school and not working. After a further incident of severe violence from his adoptive mother due to wanting $20 for phone credit, he reported he was told not to return. Victor has been homeless and in crisis refuges since that time. Victor reports he does not wish to return to his adoptive parents care. He stated that he has not spoken with his biological father in 2 years and hopes to be able to do this.”[16]
[16] Idem.
There is equally confusing information about the Applicant’s children. In the Report it states “Victor reports that his partner is pregnant with Victor’s first child”[17] but there is no evidence of any such child being born.
[17] Ibid at 410.
In the Applicant’s Personal Circumstances Form he lists two children born to him and Mariah Mead. The first, a son (IM) was born in January 2015. In his oral evidence the Applicant admitted that he was not the biological father of this child but that the child was 3 to 4 months old when the Applicant commenced his relationship with Ms Mead. His biological daughter (NU) was born in June 2017.
The Applicant left school after year 10 and commenced working in the scaffolding business for approximately 12 to 18 months. He ceased working and became homeless for a period but then aged 18 to 19 years obtained casual employment as a removalist. It does not appear that he has had any regular employment in the last six years.
After his incarceration in May 2020, he entered into a relationship with Ms Kalarnna Hardy who has a son (KD) although there is no evidence as to the age of this person.[18] The Applicant never lived with Ms Hardy and this relationship has now terminated.
[18] G-documents at 107 and 110.
THE APPLICANT’S OFFENDING NARRATIVE
The Applicant has an extensive record of offending which started in 2015 and continued intermittently until May 2020.[19] He committed numerous offences of a young age, two of which related to offences involving assault occasioning actual bodily harm or common assault, together with affray and damage to property.
[19] G-documents at 27-31.
In 2017, as an adult the Applicant was convicted on two occasions of offences involving common assault and destruction of property. These were dealt with my way of fines, bonds and Community Service Orders.
In 2018 there were a series of offences which included unauthorised entry upon inclosed lands, dishonestly obtaining property by deception and common assault. As a result of breaches of bail or other supervisory conditions, some of the offences committed in 2017 were subject to call-up. Again, all of these matters were dealt with by way of fines and Community Corrections Orders.
In August 2019 the Applicant appeared on a variety of charges including use of offensive language near a school, stalking and intimidation. Previous matters were called-up and further fines and Community Corrections Orders were imposed. One of these offences, committed on 9 April 2019 involved the Applicant (who is a very large man – 190-195 cm, 125-135 kg)[20] intimidating and racially abusing a young woman (a total stranger to the Applicant) on a suburban train. His language was racist, abusive and obscene and the young woman in question must have been utterly terrified.[21]
[20] Summonsed Material at 1.
[21] Further Summonsed Material at 473-479.
On 26 May 2020 the Applicant was convicted of the serious offence (which took place on 19 June 2019) which is described in the remarks of the Sentencing Judge (Hanley J) as follows:
…McGee and Taylor returned to the brothel, buzzed the intercom and asked to see a girl. Chen [the manager of the brothel] opened the door remotely. After McGee and Taylor entered Chen realised they were part of the group that had attended earlier. Chen walked down the corridor to get two girls for Taylor and McGee. As soon as he was gone McGee walked down the corridor and opened the external door allowing Yip, Clarke and Uili to enter
through the first two security doors. Taylor remained inside holding open the third door to allow the group to re-enter the brothel. On this occasion Clarke and Uili had the hoods of their jumpers pulled up and kept their heads lowered in an attempt to conceal their faces. The five co-offenders followed Chen into his office and surrounded him. Chen pulled out his mobile phone and tried to call the police but they stopped him. Yip [a co-offender] again
demanded Chen telephone the brothel owner saying his boss was unhappy they failed to collect money on an earlier visit.
…
Meanwhile the co-offenders searched the office looking for things to steal. At one point Clarke [a co-offender] walked into the laundry which lies just off the office, took $1,000 in cash from the laundry and put it into his pocket.
Uili was concealing a machete inside the front part of his hooded jumper. Zhu recognised Yip and Uili as two of the males he had seen on the CCTV footage of the 11 June offences. Zhu fearing a robbery was about to take place ran and locked the door to the store room which housed the safe.
The four offenders chased Zhu and circled him. Uili asked Zhu what he had locked and demanded he give him the key. He became aggressive and pushed an expandable baton into Zhu’s chest. McGee was standing about a metre behind Uili and was holding a handheld electrical anti-personal [sic] device in his right hand (as I understand it a taser-like device). McGee pointed the device at Zhu and pressed the button producing a loud noise and white electricity. Zhu was placed in considerable fear that he might suffer serious harm. Yip said to Uili “Stop and let me talk”, and spoke to Zhu in Mandarin.
…
All four males began yelling at Zhu to hurry up and one of them demanded the key. Uili then searched Zhu who was too afraid to resist. Uili reached into the rear pocket of Zhu’s jeans and removed $3,000 in cash which represented the night’s takings. Uili then reached into Zhu’s front pocket and took his keys. Zhu reached out to try and get the money back. McGee and Hytongue grabbed Zhu around the right upper arm and pushed him back. Uili used the keys to open the door to the store room. Uili asked Zhu what he was hiding, he responded “Nothing”. Uili said “Let me search” and approached Zhu and grabbed his chest with both hands before letting him go.[22]
[22] G-documents at 36-37.
During cross-examination by the Respondent, details of each of the Applicant’s offences were put to him. In a number of instances he stated that he could not recall the incident in question, but where he did, he did not contest that the descriptions of the offences in the police record of events were correct. He was invited to comment on all of the offences, and in relation to those before May 2020 he indicated that he had nothing to add.
In relation to the May 2020 offence the Applicant contested only the claims that he had a baton with him, while admitting possession of the machete and that the sum he had taken from the victim was only $400.00 and not $3,000.00. He said that he retained this money and spent it on food.
The Applicant has also committed a number of offences while in custody or detention. In February 2020 at the Metropolitan Remand and Reception Centre the Applicant was involved with a fellow prisoner (one of his co-accused in the brothel offence) in standing over, intimidating and extorting money from another inmate. [23]
[23] Further Summonsed Material at 253-254.
At the Parklea Correctional Centre in October 2021 he was found to be in possession of a weapon, which he told the Tribunal had been made by another inmate and which he carried “for protection”.[24]
[24] Ibid at 206.
THE DECISION BEFORE THE TRIBUNAL
The Tribunal has to make a simple determination – whether the revocation of the Applicant’s visa cancellation is the “correct or preferrable”[25] decision to be made on the basis of the evidence before the Tribunal.
[25] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister [26] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[27]
[26] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[27] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework upon which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.

In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[28]
[28] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [29] to arrive at a final determination.
[29] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
PRIMARY CONSIDERATIONS
Protection of the Australian Community and Family Violence
Under this criterion the tribunal must give specific attention to
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
The Tribunal regards the Applicant’s offences as serious as they involve repeated acts of violence, often directed against strangers and vulnerable people in the community. On more than one occasion the Applicant has been in possession of a weapon. There have also been offences while in prison.
There has been a pattern of frequent offending and the level of violence involved has escalated over time, a matter conceded by the Applicant under cross-examination.
In his sentencing remarks, Handley J noted that the Applicant was young at the time of the offence and took into account the need for any sentence “to be balanced against the desire to encourage young offenders to rehabilitate and become worthwhile citizens”. Nevertheless, His Honour concluded:
This type of offence is one that is regarded with grave concern by the community. They are serious offences involving the use of weapons to take money from other lawful abiding citizens going about their employment. It was done in circumstances where they were in company and in possession of weapons. All these are factors which are abhorred by the community and require appropriate sentences to deter other likeminded offenders from committing similar offences. In relation to this offender Mr Uili I am not satisfied in view of his history of offending and his failure to respond to rehabilitation in the past that he has good prospects of rehabilitation and is unlikely to reoffend. I cannot make positive assessments in that regard for him.
…
At this stage in view of his history he is a danger to the community in the context that he is likely to commit further offences unless he rehabilitates himself.[30]
[30] G-documents at 48-49.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[31] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[31] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[32]
[32] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on to say:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[33]
[33] Idem.
There has been more than one assessment of the Applicant’s risk of reoffending.
In October 2018 the Community Corrections Officer at Liverpool Community Corrections Office rated the Applicant as being a “Medium risk” level of reoffending and noted that the Applicant had indicated a willingness to participate in counselling and anger management programmes.[34]
[34] Further Summonsed Material at 486-487.
In the event, despite programmes being offered and available, the Applicant did not participate in any such programmes.
In August 2019 another officer at the Liverpool Community Corrections Office rated the Applicant as being of “Medium/high” risk of reoffending with “minimal insight into the impact of his offending behaviour on the victim and the community”.[35]
[35] Further Summonsed Material at 470.
It is significant that the Applicant’s rating, both on the Level of Service Inventory – Revised (LSI-R) scale had increased over a relatively short period of time.
It is also a matter of some gravity that the Applicant has been offered several opportunities to participate in programmes aimed to assist in either his anger management problems or his general rehabilitation and he has failed to engage in active participation fully in any of them. These include a programme under the supervision of the Drug Court delivered at the Compulsory Drug Treatment Correction Centre (Parklea Correctional Complex) which was mandated for the Applicant in March 2021. While the Applicant commenced the course[36] he told the Tribunal that he discontinued participation once he received his “deportation notice”.
[36] G-documents at 128.
As noted above, the Applicant was subjected to a number of corrections orders which involved supervision or probation associated with counselling. On 13 April 2017 part of his sentence involved probation with a “focus on counselling for anger management and alcohol issues”.[37]
[37] Summonsed Material at 10.
The Applicant claims to have completed the EQUIPS[38] programme while in custody[39] however there is no evidence of any completion of such a course.
[38] Explore, Question, Understand, Investigate, Practice, Succeed – a programme dealing with issues of addition, aggression and domestic abuse.
[39] G-documents at 113.
To the extent that the Applicant undertook any of these programmes seriously, it is apparent that even after that, he continued to offend in the same, and indeed increasing fashion.
The Tribunal finds in relation to this criterion that the Applicant has committed serious offences and is at a medium to high risk of reoffending and as such, the criterion counts significantly against the Applicant.
Family violence
The Respondent has not raised any issues of family/domestic violence in relation to this application and while there is some evidence before the Tribunal regarding what might be described as “relationship disputes” there is no suggestion that the Applicant has ever engaged in any acts of family/domestic violence.
As a result, this criterion counts neither for nor against the Applicant and is of neutral weight.
THE BEST INTERESTS OF MINOR CHILDREN
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[40]
[40] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
In relation to the child IM, the evidence establishes that the Applicant is not the child’s biological father but that he was in some sort of relationship with the child’s mother for a number of years. However, the child was taken into the custody of the NSW child welfare authorities sometime in 2016 when the child would have been less than two years of age. The details of when this occurred are not known but the child was placed with his mother’s aunt.[41] Since that time there is no evidence of any close or enduring contact between the Applicant and this child and indeed he has made clear that “I have had limited access to my children as a result of the ex (Mariah) losing custody to her aunt due to drug use.”[42] The Applicant has never played a parental role in the child’s life.
[41] G-documents at 108-109.
[42] Ibid at 109.
The same may be said of the Applicant’s daughter NU who is also in the custody of the same relative, again from a date unknown, but when she was approximately one year old according to the Applicant. At the time of his imprisonment the daughter would have been only two years old. There is no evidence of any close parental relationship with this child.
The Applicant states that it is his intention to regain his liberty in the community, find employment and accommodation and then apply for custody of his two children.[43] He told the Tribunal that he expected that his mother and family would help him care for the children but as will be explained below, the Tribunal does not accept this as being a realistic prospect. The Tribunal is in no position to know what the possibility of the child welfare authorities would be in terms of agreeing to such an application. The Tribunal notes that the Applicant writes that he is concerned that his daughter “cries for her parents and I fear this would scar her for life” and that “My son has already been indoctrinated by his aunt already and I need to address his asap.”[44] It is impossible to know what the Applicant means by this but it does not portend well for any resolution of matters in the best interests of the children within the family.
[43] Idem.
[44] Idem.
The Applicant has also identified a child of another previous partner Kalarnna Hardy as being one with whom he has a close relationship. He claims that he speaks with him “via AVL and phone multiple times a week. He sees me as a father figure already and tells me he awaits my release for me to move in. He has no contact with his biological father.”[45] He further claims that this child “will be devastated and lose his father and parenting role model. This will impact him emotionally & physically.”[46]
[45] Ibid at 111.
[46] Idem.
There are several problems with this claim. In the first instance the Applicant was unable to provide a date for the child’s birth in his documentation, so it is impossible to know the child’s age. Secondly the Applicant has never been physically present with this child as he was already in custody at the time of meeting the child’s mother.[47] Finally there would be no chance of the Applicant “moving in” as his relationship with the child’s mother has already terminated.
[47] Ibid at 107.
Finally, the Tribunal questioned the Applicant as to the presence of other minor children and he eventually calculated that there might be up to 11 nephews and nieces in the families of three of his brothers and two of his sisters. He was unable to say how many or to give any details about them and there is no evidence that he has had any meaningful contact with any of them. These somewhat more precise details are to be preferred to the Applicant’s written claim that he has “over 50” nieces/nephews.[48]
[48] Ibid at 112.
In terms of weighing this criterion, the Tribunal cannot be satisfied that the Applicant has had any meaningful relationship with any minor children or that he has ever played a parental or meaningful role in the lives of even his own children. It does not discount the Applicant’s expressed desire to be able to establish such a relationship nor the difficulty that would be attendant upon establishing or maintain a relationship were the Applicant not to be physically present in Australia, although this would not be impossible.
No representations in support of the Applicant relevant to this matter were forthcoming from any of the children’s mothers or any members of the Applicant’s family.
The Tribunal finds that this criterion counts in favour of the Applicant but that it does so only to a limited extent.
The expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.”
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[49] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[49] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[50]
[50] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In this instance, given the conclusions which it has reached about the nature of the Applicant’s offending and risk of future offending the weight to be given to this consideration must be to a significant degree unfavourable to the Applicant.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[51]
[51] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.

His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[52]
[52] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[53] and more clearly supported by Wigney J in FHHM. [54]
[53] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[54] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[55] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[56]
[55] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[56] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[57]
[57] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[58]
[58] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said:[59]
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[59] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
In this instance no issues related to Australia’s non-refoulement obligations have been raised and, as a result, this criterion counts neither for nor against the Applicant and is of neutral weight.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available in Australia as compared with those in New Zealand (or Samoa), but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place. In any event numerous decisions in this Tribunal have established that all the relevant standards in New Zealand are comparable to those in Australia.[60]
[60] See the list of authorities contained in the Respondent’s SFIC at footnote 21.
It is clear that the Applicant is still a young man. He agreed with the Tribunal that he could properly be described as being physically fit, with no major impediment diagnosed; not dependent upon any regular medication and he does not have problems associated with is mental health. He also has employable skills relevant to the building and construction industry
The calculus in this instance is not however quite so clear. In the first instance, the Applicant has never actually lived in New Zealand and so it cannot be said that he is entirely familiar with its customs and mores, although obviously facing no language challenges. He came to Australia direct from Samoa and has only visited New Zealand once, on holiday with his parents as a child for a few weeks.
The Respondent was unable to assist the Tribunal in relation to its question about whether the Applicant, if his visa remained cancelled, could be returned to Samoa. The Applicant has no family or friends in New Zealand however the Report states that the Applicant’s adoptive mother gave information to the effect that “Solate wants Victor to return home to Samoa”.[61] There was no exploration in the Tribunal about the current state of the Applicant’s family or contacts in Samoa but that might be a moot point were the only legal option available be that of returning the Applicant to New Zealand.
[61] Further Summonsed Material at 410. Solate being the Applicant’s biological parent.
The High Court considered a more extreme case dealing with return to a country with which the applicant had no connection other than formal citizenship in the matter of Nystrom. Mr Nystrom was born in Sweden while his mother was her parents visiting there and came to Australia aged 25 days old where he lived continuously. At the age of 30 he was convicted of a very serious offence and his visa was cancelled. The Minister moved to deport him back to Sweden, but her order was blocked by a majority in the Full Federal Court. On appeal to the High Court, the Full Federal Court decision was set aside[62] and Mr Nystrom was returned to a country where he had no contacts, had never lived, did not know the language and was otherwise a stranger.
[62] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Nystrom [2006] HCA 50.
The Tribunal finds that the Applicant would suffer a degree of real impediment if removed to New Zealand given the circumstances outlined above. However, these would not be insuperable in the long run and, once in New Zealand, the option of a return to Samoa might provide an alternative for the Applicant to consider.
In relation to weighing this criterion, the Tribunal finds that it counts in the Applicant’s favour to a moderate degree.
Impact on victims
Paragraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
In this instance there are no identifiable victims whose interests need to be considered and, as a result, this criterion counts neither for nor against the Applicant and is of neutral weight.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have the right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Turning first to the Applicant’s family situation, there is no significant evidence that the Applicant and his family are close. The Applicant has long been estranged from his father who he reports abused him as a child, although he says now that he is seeking a reconciliation. In his statement the Applicant contends that if he were to be required to leave Australia:
They will be severely impacted by their nephew/uncle/brother/cousin/son no longer being able to see them as I used to provide emotional and financial support.[63]
[63] G-documents at 112.
There is simply no corroborative evidence to support this proposition. The Applicant, by his own admission, has a fraught relationship with his parents and his siblings. They all used to beat him. He ran away from home because he could not cope with the family’s ill treatment of him. His mother gave him a severe beating that caused him to run away. His father abused him, and the Applicant has not spoken to him in years. He has never earned enough money to provide financial support in any meaningful sense to anybody else, although he does say that when he briefly worked as a scaffolder he “was required to give 90 percent of his pay to his adoptive family”.[64]
[64] Further Summonsed Material at 409.
In the telephone directions hearing on 26 May 2022 the Tribunal emphasised to the Applicant that it would assist him if members of his family were in a position to provide written submissions to the Tribunal on his behalf as none had been provided in any previous representations. None was forthcoming.
The Applicant also claimed initially that his girlfriend (Ms Hardy) would be “devastated” at his removal as they “have made commitments to each other to be monogamous and move in once released”.[65] However his evidence to the Tribunal was that this relationship, which had only been via AVL while he was incarcerated, had now ended.
[65] G-documents at 107.
On the strength of the evidence before it the Tribunal cannot find that there would be a significant impact on members of the Applicant’s family, from whom he has been largely estranged, if he were removed.
The Applicant has lived for 24 years in Australia, he arrived aged eight years and his first offence was committed eight years later.
It cannot be said that the Applicant has made any positive contribution to the Australian community. His periods of employment have been spasmodic. He does not appear to have been gainfully employed in the last six years other than on an occasional basis as a removalist. There is no evidence of any contributions made though any organisations or groups in the community.
Section 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. There is no suggestion that the Applicant’s removal would have any impact on any relevant business interests in Australia.
Consideration of all these elements leads the Tribunal to find that, in relation to this criterion, it counts in favour of the Applicant only to the extent that this is where he has spent most of his (and all of his adult) life. The weight which should be given to it is limited.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section… 501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
In this application the Tribunal can find no other considerations, apart from those specified in the Ministerial Direction which should be considered.
CONCLUSION
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria:
·protection of the Australian community weighs significantly against the Applicant;
·family violence weighs neutrally in relation to the Applicant;
·best interests of minor children weigh in favour of the Applicant to a limited extent;
·expectations of the Australian community weigh significantly against the Applicant;
·non-refoulement obligations weigh neutrally in relation to the Applicant;
·extent of impediments if removed weigh moderately in favour of the Applicant;
·impact on victims weigh neutrally in relation to the Applicant; and
·links to Australia weigh in favour of the Applicant to a limited extent.
Quite clearly, the two primary considerations of the protection and expectations of the Australian community count significantly and determinatively against the Applicant such that they must overbear any of the other criteria which count (in this instance to a much lesser extent) in favour of the Applicant.
DECISION
The decision under review is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.......................................[sgd].................................
Associate
Dated: 24 June 2022

Date(s) of hearing: 7 June 2022

Applicant: In person

Solicitors for the Respondent: Ms K Ervin, Clayton Utz

[2022] AATA 1968

24 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	7 June 2022
Applicant:	In person
Solicitors for the Respondent:	Ms K Ervin, Clayton Utz