Uluikavoro Qoro and Minister for Immigration and Border Protection (Migration)

Uluikavoro Qoro and Minister for Immigration and Border Protection (Migration) [2018] AATA 56 (19 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6565
Re:Ratu Meli Koyadradra Uluikavoro Qoro
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:19 January 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the discretion not to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under section 501(2) of the Migration Act 1958 should be exercised.
[sgd]........................................................................
Senior Member
MIGRATION – Discretion to cancel a visa – character test – substantial criminal record – drink driving offences – breaches of court orders – Ministerial Direction No. 65 applied – applicant does not pass character test – whether discretion should have been exercised – the protection of the Australian community from criminal or other serious conduct –expectations of the Australian community – best interests of minor children – reviewable decision set aside.
Legislation
Migration Act 1958 (Cth) ss 499(2A), 501(1), 501(2), 501(6), 501(7), 501(7A), 501CA
Family Violence Protection Act 2008 (Vic)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Cronin and Minister for Immigration and Border Protection [2014] AATA 29
Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372
Secondary Materials
Direction No. 65, Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Instrument made on 22 December 2014).
REASONS FOR DECISION
Senior Member D. J. Morris
19 January 2018

This is a consideration of an application lodged under section 500(1)(b) of the Migration Act1958 (the Act) for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) dated 1 November 2017. The Applicant, Ratu Meli Koyadradra Uluikavoro Qoro (called in these reasons Mr Uluikavoro) was notified on the same date that his Class BB Subclass 155 Five Year Resident Return visa would be cancelled under section 501(2) of the Act.
Mr Uluikavoro was born on 14 January 1979 in Fiji and is a Fijian citizen. He migrated to Australia with his parents and siblings on 19 July 1993 when he was aged fourteen. At some time after that, his father returned to live permanently in Fiji and has since passed away. His mother and siblings remained in Australia.
The Tribunal had before it a National Police Certificate (the Certificate) dated 16 February 2017. This Certificate records a finding of guilt against the Applicant dated 8 January 1996 before the Children’s Court in New South Wales when he was 16. At that time he was placed on a good behaviour bond for twelve months to be supervised by the young offenders support team. Unfortunately, in November 1996 Mr Uluikavoro was again before the court, and was found guilty of assault and a number of driving offences. In March 1997 he was again before the Children’s Court and found guilty of stealing a conveyance and traffic offences. He appears to have modified his behaviour for a time, but in 2002 he came before Parramatta Local Court and was found guilty of common assault.
From 2002 to 2016 the Certificate discloses twelve further court appearances. A large number of these were driving offences, including unlicensed driving, driving while disqualified and several findings of guilt of driving with a higher than allowed blood-alcohol content. There were also two public order convictions. This was in addition to several convictions and findings of guilt for failing to comply with orders of the court including failing to: answer bail; comply with intensive correction orders, suspended sentence orders and family violence intervention orders.
On 1 May 2017 Mr Uluikavoro received a notice in writing that consideration was being given to cancelling his visa under section 501(2) of the Act. Section 501(2) gives the power to the Minister or a delegate of the Minister to cancel a visa if it is reasonably suspected that the visa-holder does not pass the character test or if the decision-maker is not satisfied that the visa-holder passes the character test. The purpose of the notice is to provide a visa-holder the opportunity to comment or provide information on whether the person passes the character test and on whether the decision-maker should exercise his or her discretion to cancel a visa. There is no obligation for a visa-holder who receives such a notice to respond but, if the person does not, a decision may be made on the basis of information that the Department already holds, without further notice to the person. The Department referred to in this statement of reasons was known as the Department of Immigration and Border Protection. On 20 December 2017 the Governor-General made an Administrative Arrangements Order abolishing that department and creating a new Department of Home Affairs, which is now the department responsible for administering the Act.
The Department advised the Applicant that it held information about his criminal history (which was listed at the end of the notice), indicating that he has a “substantial criminal record” within the meaning of section 501(7) of the Act and, as a result, he did not pass the character test by virtue of section 501(6)(a) of the Act.
Mr Uluikavoro did not respond to the notice of 1 May 2017. On 1 November 2017 the delegate decided not to issue a warning notice to the Applicant about his future conduct under section 501 of the Act and instead decided that the delegate reasonably suspected Mr Uluikavoro did not pass the character test and he had not satisfied the delegate that he passed the character test. As such, the delegate exercised the discretion under section 501(2) to cancel his visa.
The Applicant sought a review of the decision by the Tribunal. A hearing was held on 12 January 2018. Mrs Elina Uluikavoro, the Applicant’s wife, appeared as his advocate. Mr Jamie Grant represented the Respondent. The Applicant gave evidence and was cross-examined. Pastor Jonetali Vonocili and Ms Shirley Danford were also called by the Applicant and gave evidence.
Documents submitted by the Respondent (G documents) were admitted into evidence, as were other witness statements, all of which were considered by the Tribunal.
Issues and Legislation
The issues for consideration by the Tribunal are:
(1)Whether Mr Uluikavoro passes the “character test”; and
(2)If not, whether the discretion in section 501(2) of the Act to cancel his visa should be exercised in the particular circumstances of Mr Uluikavoro’s case.
The character test
Section 501(1) says that the Minister, or the Minister’s delegate, may refuse or cancel a visa if the person applying for or holding the visa does not satisfy the Minister that the person passes the character test. This power is discretionary. The character test is defined in section 501(6) of the Act.
Subsection 501(6) sets out the grounds for failing the character test. It states, in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a)The person has a substantial criminal record (as defined by subsection (7); or…
Subsection 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
For the purposes of the character test, a person has a substantial criminal record if:
…
(d) the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more;…
Subsection 501(7A) of the Act states:
For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
The Certificate in evidence before the Tribunal has been reproduced in Appendix A and is a record of the court appearances of the Applicant. The Tribunal finds from this evidence that is a matter of fact that Mr Uluikavoro has been sentenced to terms of imprisonment totalling more than twelve months. Having regard to the provisions of section 501(7)(d) of the Act, where a person is sentenced to two or more sentences of imprisonment and the total of those terms is twelve months or more, the Tribunal finds that he has a substantial criminal record within the meaning of section 501(7) of the Act.
DIRECTION No. 65
Section 499 of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Relevantly, the Direction includes the following principles:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part A of the Direction. This is divided into primary considerations and other considerations.
Primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
Other considerations set out in paragraph 10 of the Direction include: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.
Substantial criminal record
Although this was not urged by the Applicant’s representative, it is important to stress that the Tribunal cannot reconsider Mr Uluikavoro’s convictions. Deputy President Forgie stated in Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, at [121]:
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves or question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.
The Tribunal respectfully agrees with this conclusion, and notes that there was no evidence on any occasion that the Applicant appears to have disputed the charges against him at court, noting that when taken through the Certificate at this hearing he disputed elements of one or two of the earlier charges on the basis that he could not remember them.
Except for one court appearance, the Tribunal did not have detailed information about the various charges of which the Applicant has been found guilty, other than the somewhat scant summary in the Certificate. The exception was an appearance before Mr Lennon, Magistrate, at the Frankston Magistrates’ Court on 16 September 2016. The Court transcript states, in part, as follows:
PROSECUTOR: Thank you, sir. Wednesday, 2 January 2013, this court issued an intervention order against the accused imposing a condition not to attend an address in Chelsea whilst intoxicated. It was served on him and effective until 31 December 2060. On 13 August 2016, at 6.30 in the morning, he arrived at that address. He was seen by his wife at this time to be throwing items around the driveway and swearing loudly. Just prior to 8 am, police attended the address by which time the police observed the accused to be moving about in the driveway. A short time later he was spoken to inside his home by police. They noticed at the time he was in an intoxicated state. He was unsteady on his feet, he had bloodshot eyes and his breach [sic] smelt of intoxicating liquor. He was cooperative with police when arrested stating “I understand you have a job to do.” He was then taken to the Chelsea Police Station. Prior to being interviewed, he was in a good frame of mind. However, when the recording started he became belligerent. Police were unable to reason with the accused to administer the caution. He continually spoke over the top of the police member denying any braches [sic] of the intervention order. The interview was stopped without completion. He was then charged and bailed to this court. He said when he was at home, he stated to the police he had been consuming alcohol at the Springvale Pub with friends celebrating the gold medal win by the Fijian rugby team.
….
COUNSEL [for Mr Uluikavoro]: Your Honour, it is a situation where he was out celebrating the Fijian Rugby 7s team win at the Olympics. Mr Uluikavoro does instruct he has previously had an alcohol problem and essentially, Your Honour, this is a situation where he fell off the wagon after the Rugby 7’s win and he certainly acknowledges that today and acknowledges the seriousness of his behaviour. He instructs that this isn’t something he would usually do. Since that order has been in place since 2013, Your Honour, his drinking had reduced and it’s my submission that’s actually noted in his priors with no further offending since then. Essentially, Your Honour, my submission is he’s fallen off the wagon on this occasion. He does know he shouldn’t be going home when he’s been drinking and normally he would just stay at a friend’s case [sic] if that was the case but it’s something that didn’t happen at this time and it’s something he wishes he have [sic] done this time.
HIS HONOUR: In 2013, a suspended sentence was restored?
COUNSEL: Yes, Your Honour.
HIS HONOUR: So he did that four months?
COUNSEL: Yes, Your Honour, and he came out of gaol on that occasion and that’s what turned his drinking around.
…
He’s 37-years-old, Your Honour, and does live with his wife in Chelsea and their four children. They’re aged between 12 and 11 months old. He married his wife in 2004 but they’ve been together since 2002. He was born in Fiji and came to Australia in 1993. His partner’s a stay-at-home mum to the four kids. He did previously have that alcohol problem, that stemmed from his father’s passing 2011. He’s working at the moment as a welder.
HIS HONOUR: What are his drinking habits now?

COUNSEL: My instructions are they’re significantly limited but I can take instructions, Your Honour. Your Honour, my instructions are that it’s a few beers with friends every two weeks or so now. So he’s not drinking at the same level that he was before. He said the [sic] generally drinks a maximum of six beers. So it’s not extremely excessive.
...
COUNSEL: He’s been working with his employer since 1 April, Your Honour. Prior to that, he’s been working at the Woolworths’ distribution centre for about three months and prior to that he worked at Ancare Insulation for about two years so he’s been employed consistently for a while now.
The Magistrate noted that Mr Uluikavoro had committed a number of previous breaches and that he did not have a good track record of compliance, but took into account his pleas of guilty and imposed a $2,000 fine with conviction. The Tribunal has set out what the prosecutor relayed to the Court about the intervention order imposed on the Applicant and that this order was imposed for what would appear to be the somewhat surprising period of 47 years. There was no evidence before the Tribunal of any physical violence by the Applicant relating to his family, or indeed anyone else since 2008; but the fact is that there was an order, and Mr Uluikavoro breached it, and I do not look behind that proven fact.
Protection of the Australian community from criminal or other serious conduct
The nature and seriousness of the conduct (Paragraph 9.1.1)
The Applicant in his evidence accepted that he had a history of offences. While, as mentioned earlier, he quibbled with the detail of some of the older offences listed in the Certificate, he stated that he had a major car accident in 2004 and that had affected his memory, so he simply could not remember some of the detail. However, he did not provide any corroborating evidence of injuries that might have lent support to this contention. Mr Uluikavoro agreed with Mr Grant’s submission to him that alcohol had played a big part in his offence history.

The term of imprisonment which he ultimately served, having breached conditions imposed which had seen that prison term originally suspended, was for a breach of an Intervention Order made by the Magistrates’ Court under the Family Violence Protection Act 2008 (Vic). The Order was sought by an officer of Victoria Police in 2013 and the particulars set out in summonsed documents before the Tribunal state:
The AFM [aggrieved family member] and Resp are husband and wife, after a big night of alcohol intake from both parties, a verbal dispute has occurred b/w both parties the resp is heavily intoxicated and verbal abuse happened outside the house in the hearing of 2 children 8yo female and 6yo male. The resp has threatened to damage the AFMs vehicle, nil damage occurred to vehicle.
The Tribunal views domestic violence, in any form, dimly. The facts of this matter were accepted by Mr Uluikavoro, and he acknowledged that the two children he and his wife had at the time heard the argument. Senior Member Sosso (as he then was) in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 said:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long standing. The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character.
I agree with the tenor of these sentiments. I do note that both parties were intoxicated and on the evidence and police report to the Court, that there was no physical violence, nor damage to property. Mrs Uluikavoro made submissions that she did not feel threatened on that occasion “he was just loud”. There was no evidence before the Tribunal that the Applicant had ever been physically violent to any family member, and Mrs Uluikavoro said since she has known him since 2002 and she had never seen him be physically violent towards any person. However, his is still wholly unacceptable conduct, because this behaviour was in fact threatening and it exposed his young children to a traumatic situation at an impressionable age, potentially making them fearful.
The Tribunal notes that the Applicant recorded that he had a history of criminal convictions on his incoming passenger card when returning to Australia except on one occasion when he omitted this information and he was counselled by border protection officers at Tullamarine Airport. This is relevant to paragraph 9.1.1(h) of the Direction where a decision-maker must take into account whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. But the Tribunal accepts this was a lapse, given he had faithfully recorded his criminal convictions on other entry cards.
The risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct (Paragraph 9.1.2)
As discussed above, Mr Uluikavoro has a string of prior offences. There is some evidence that his conduct improved as he has got older and particularly since he became a husband and a father, but then, as the offence history in the Certificate illustrates, up until 2013 he would periodically lapse back into offending. There is a consistent history of failure to abide by court orders that is concerning. His inability to regulate his alcohol consumption is also a feature.
Pastor Jonetali Vonocili, a church elder of a church in Carnegie, gave evidence to the hearing. He said that he had known the Applicant since 2001 and had been impressed by work he had done around that time as a church youth worker in inviting other young people from cross-cultural groups to attend youth meetings at the Church. Pastor Vonocili said that he had discussed the Applicant’s alcohol problems with him in the past. Pastor Vonocili said that he had moved for a time to Western Australia and lost contact with Mr Uluikavoro but on his return to Victoria was pleased to reacquaint with him at church, and meet Mr Uluikavoro’s wife and their children. The witness said that he believed the Applicant has potential to grow as a good family man and husband, can contribute to the local community and that he would offer support to him as a mentor and guide.
Mr Uluikavoro said that he had not “touched alcohol” until he went to a party in 2016 when the Fijian national team were successful at the Olympic Games. He accepted that he breached the intervention order requiring him not to go home if intoxicated. He said that he was “over-drunk and just wanted to get home”. The Tribunal asked why he did not stay overnight with his friend, as he had done periodically before. Mr Uluikavoro said that the friend he was staying with that night was going out to drink further and the Applicant thought, if he did that, it might lead to worse outcomes. He said that he felt safer at home because his wife understands him. The Applicant said that he had been visited while in immigration detention by representatives from Alcoholics Anonymous (AA), who had explained their strategies. He stated that he would be prepared to attend AA meetings, but seemed confused about the difference between the AA approach of complete abstention from alcohol and what he termed “responsible drinking”. He also said that he had been visited by Salvation Army officers when in prison. Mr Uluikavoro said that he had put his name down while in detention to see a psychiatrist but there was a waiting list, and he had not yet had an appointment. The Applicant told the Tribunal he believed he could give up alcohol and that “I would like to”. When asked how much he would drink in a week, Mr Uluikavoro said he would have “around two six packs, up to a slab”. The Tribunal notes that this could be regarded as a higher than average consumption of alcohol but on this evidence the Applicant would not appear to be in the general category of an alcoholic (taking into account that alcohol can affect individuals in widely different ways). Mr Uluikavoro in his evidence presented an, at best, inchoate plan to try and address his drinking problem; it is the management of what might be reasonably termed periodic ‘binges’ that seems to be Mr Uluikavoro’s challenge.
Mr Grant said that the delegate accepted that Mr Uluikavoro had reduced his consumption of alcohol but submitted that the Applicant’s difficulty was that he cannot maintain control of intake. The evidence before the Tribunal supports this contention.
The cumulative nature of repeated offending must be taken into account by decision-makers under paragraph 9.1.1(1)(g). The fact that the Applicant has been to court for multiple drink driving offences as an adult driver up until 2013 weighs substantially against him in this consideration. There is objectively a significant risk to members of the Australian community should he again get behind the wheel of a car while intoxicated. The court rightly imposed a long driving ban.
There was some evidence before the Tribunal about Mr Uluikavoro’s efforts to improve his conduct, which the Tribunal takes into account as evidence of rehabilitation achieved by the time of the visa cancellation decision, as required by paragraph 9.1.2(2)(b)ii of the Direction. The Applicant gave evidence that he successfully completed a welding qualification while in prison and, on being released, found employment in that trade. The Tribunal had before it a testimonial from Mr Lino Cannizzaro, Production Planner of Dunbier Marine Products Pty Ltd which stated:
Ratu Meli Uluikavoro has been working for us since 31/05/2017.
He is Employed at Dunbier as a casual Welder, working a 38hrs week.
I have found Ratu to be a valuable team member, and will undertake any tasks, that are put to him, and they are always completed in an efficient and timely manner.
The Tribunal also had before it a character reference from Lorraine Uluikavoro, the Applicant’s sister, which relevantly said:
In 2013 I had a pretty rough year and was doing it tough, my brother advised me to move to Melbourne and live with him till I was back on my feet and that’s what I did. Moving in with my brother was the best thing I could have done as he encouraged and helped me to where I am today. In 2014, thanks to Ratu Meli, I decided to join the Royal Australian Navy and have never looked back. My brother has been a main source of support as I went through training and always told me never to give up. Nearly four years in the Navy and he is still doing that, I am currently serving in the Middle East on Operation Manitou and owe a lot of my success to my older brother Ratu Meli Koyadradra Uluikavoro Qoro.
The Tribunal takes into account the Applicant’s work history and the evidence from Pastor Vonocili and the Applicant’s sister, which may be counted in his favour.
Best interests of minor children in Australia affected by the decision (Paragraph 9.2)
Mrs Uluikavoro in her opening submissions said that the Applicant is a good father. They have four young children. The oldest is now 13, the next is 12, and the younger two are 3 and 2. She told the Tribunal that when her husband came out of gaol he was a “changed man” who was working to provide for the family. She said he loves his children and his family. She told of the children’s heartache at their first Christmas without their father and how their oldest son found it hard that his father was not there when he graduated from grade six at his school. Mrs Uluikavoro said she was aware that many children rebel without a father figure and urged the Tribunal to take that into account.
The Tribunal notes the 2016 submissions of Mr Uluikavoro’s counsel to the Court that he is the sole financial provider to the family and the Respondent’s submissions that the cancellation of the Applicant’s visa will have a significant impact on his children in terms of paragraph 9.2 of the Direction.
Paragraph 9.2(3) requires that the best interest of each child should be given individual consideration to the extent that their interests may differ. The Tribunal notes that before it was a letter from Dr Pradeep Samarakoon of Chelsea Heights Medical Centre to Cherie Lacis dated 14 December 2017. The Tribunal notes that the Australian Health Practitioner Regulation Agency lists Ms Lacis as a clinical psychologist. The letter refers to one of the Applicant’s older children whom it is not necessary to name and that after assessment the child will require six sessions under a Medicare Mental Health Plan.
Also before the Tribunal was the report of a chest x-ray by Dr Fern Goh at Monash Imaging, Monash Medical Centre, relating to the Applicant’s youngest child dated 15 March 2017 which found:
Large loculated pleural opacity is seen in the right hemithorax. This extends medially with associated mediastinal shift to the left. Given the provided clinical details, appearances are in keeping with a large empyema.
An ultrasound was requested. The Tribunal did not have further details of the course of treatment but noted that Dr Goh referred to presentation of a “septic, unwell appearing child with tachypnoea and history of prolonged coryza and fever, reduced air entry right base and soft crackles, right >left.”
The health situation of children of a visa-holder are not matters that are specifically referred to in the Direction, but the Tribunal considers these are broadly relevant elements to take into account in terms of Mr Uluikavoro being the sole bread-winner in the family and providing for their needs, including their medical needs.
The Tribunal also notes that the two older of the Applicant’s children had submitted written statements requesting that Mr Uluikavoro be allowed to remain in Australia. As the Direction makes clear at paragraph 9.2(f), those views are taken into account and given weight by the Tribunal commensurate with the age and maturity of the child making the statement.
The Tribunal finds that this primary consideration weighs strongly in favour of exercising the direction for the Applicant’s visa not to be cancelled.
Expectations of the Australian Community (Paragraph 9.3)
The Respondent drew the Tribunal’s attention to paragraph 9.3(1):
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this regard.
The Respondent submitted that Mr Uluikavoro’s conduct has “demonstrated a repeated and persistent disregard for the safety of the Australian community and the authority of its institutions, including significantly, orders put in place to protect the community from the applicant’s conduct.“ The Respondent submitted that the community, when considering, would “expect that his visa should be cancelled”.
The Tribunal notes that there have been a large number of offences, particularly driving offences. Of particular concern is that the Applicant has breached a number of court-imposed orders, and this does indeed show a disregard for institutions. I note the Applicant’s frank evidence that his 2016 breach of the intervention order was precipitated by a sporting victory party where he over-drank and that the reason he went home was because he felt safer there and did not want to go on drinking. Even viewed in the context that there was no evidence of any physical violence, the Applicant needs to understand the reason for the order was partly to keep the peace, and breaking it by having public arguments in the street is wholly undesirable.
It is noted that he has had a bad general driving record, and a bad drink-driving record. In his favour is that he has committed no such offences since March 2013, a period of almost five years, and the Tribunal takes this into account.
Other considerations (Paragraph 10)
The Direction requires decision-makers to consider five other factors (other considerations) when considering whether a visa should be refused or cancelled.
International non-refoulement obligations (Paragraph 10(1)(a))
The Respondent submitted that this is not relevant to this review. The Tribunal notes that Mr Uluikavoro is a citizen of the Republic of the Fiji Islands and on the movement record before the Tribunal has returned there periodically, five times between 1997 and 2014. There was no evidence advanced from either party that the Applicant would be at risk of harm if he returned to Fiji.
Strength, nature and duration of ties (Paragraph 10(1)(b))
The Applicant left Fiji to move permanently to Australia in 1993 with his family. He said that his father subsequently returned to that country but has since died. His mother and siblings live in Australia. He said that he did have some extended family in Fiji “aunts who remember me as a child, but I don’t remember them”. The Applicant’s wife is an Australian citizen, as are his four children. It would appear from the movement record before the Tribunal that while Mr Uluikavoro’s close family members are in Australia, his broader ties to Fiji are not completely remote, because he has travelled back there on five occasions since migrating to Australia 25 years ago.
It is clear to the Tribunal that Mr Uluikavoro has strong family ties in Australia and has lived here for most of his life, which counts in his favour under paragraph 10.2(1)(a) of the Direction. However, less weight is given to that consideration by the fact that he did commence offending as a minor not many years after his arrival and, as the Certificate showed, had until 2013 a lamentable history of offences, including driving offences. He has been sentenced on several occasions but the sentences were suspended in lieu of good behaviour orders, community based orders and intensive correction orders, and he told the Tribunal he undertook more than 140 hours of community service.
He has contributed positively to the community as a church youth worker, according to the written and oral evidence of Pastor Vonocili. He has been a good employee, according to the written testimonials of Mr Cannizzaro referred to above, and to Mr David Ward, Factory Manager at H. & B. Fencing & Gates Pty Ltd in Dandenong South, who wrote on 11 March 2017:
I employed Ratu Meli February 2016 as a welder for steel fabrication. He was employed for a period of 12 months. Unfortunately business became slow and like others I could no longer afford to offer work. During his employment Ratu Meli made a strong contribution to our culture and quality of work. He was respected and liked by all of his colleagues. During this time I met his wife and four children. I found the family to be engaging and respectful. Ratu Meli is a man of intigrety [sic].
Other details of the Applicant’s employment history were outlined to the Frankston Magistrates’ Court in 2016 and are in the transcript excerpt above. The Tribunal agrees with the Respondent’s submissions that the evidence of employment indicates a positive contribution to the Australian community and that the cancellation of the visa will have a significant impact on Mr Uluikavoro’s direct and extended family.
Impact on Australian business interests (Paragraph 10(1)(c))
The Respondent submitted that this consideration weighs negligibly in Mr Uluikavoro’s favour. The Tribunal notes that the Applicant was able to gain, and sustain, employment as a welder and therefore contributed positively to the Australian economy, but cannot see that there would be a detrimental impact on Australian business interests if he were to return to Fiji.
Impact on victims (Paragraph 10(1)(d))
No evidence was advanced by the Respondent that this was relevant to the decision and the Tribunal had no other material relating to the few historical offences that appear from the Certificate could be relevant to this consideration.
Extent of impediments if removed (Paragraph 10(1)(e))
The Applicant stated in evidence that, although he did not have any close family remaining in Fiji, he did speak Fijian. The Respondent accepted that some degree of hardship would be entailed after an absence from his country of birth for some 24 years, it is not a significant hardship, and in this respect disagreed with the delegate of the Minister who considered that Mr Uluikavoro would face language and cultural difficulties.
The Tribunal considers that Mr Uluikavoro’s trade as a welder is a transferable skill and there is no reason to believe that he would not be able to find employment in Fiji. Although the Applicant gave somewhat vague evidence about a major car accident in 2004 and injuries he sustained he did not advance any evidence about ongoing health problems which could be relevant under paragraph 10.5(1)(c) of the Direction.
CONCLUSION – THE PREFERABLE DECISION
The Tribunal has carefully considered the evidence before it, and the submissions by parties. There are considerations which weigh in favour of the Applicant and which weigh against him. I believe that he realised that he has a problem with periodic excessive consumption of alcohol and that he had brought it under control, and then had a major lapse in 2016. I consider that the evidence indicates that the Applicant is otherwise a good father to his children and had gained a skill which he was using for regular employment and to provide for his family. The submissions of his wife at the hearing reinforced that view, as did the evidence of Pastor Vonocili and the Applicant’s sister-in-law, Ms Danford.

The Direction stipulates that not every consideration is to be given equal weight. The delegate considered there was “a likelihood, albeit a low likelihood,” of the Applicant re-offending. At the hearing Mr Grant took a stronger view and submitted that there was a “real risk” because Mr Uluikavoro had shown a casual disregard for the law and that the Australian community would expect his visa to be cancelled.
It is my conclusion that Australians have a low tolerance for repeat offenders, but that the Australian community also takes a positive view of persons who have accepted penal sanctions and used their time incarcerated to improve themselves and their prospects. Mr Uluikavoro did this by successfully completing a welding course and then obtaining gainful employment in that trade. Particularly significant in my consideration is that the Applicant is the sole provider for his family and four children and the consequences of his being separated from them would be very significant. The Tribunal has in the past found it relevant to consider the mental health, general well-being and financial circumstances of partners and direct family in regard to the application of Direction No. 65 (see, for example, Deputy President Hotop’s comments in Cronin and Minister for Immigration and Border Protection [2014] AATA 29), and I consider these are matters to take into account.
Importantly, the Tribunal notes that the Applicant has not committed any offence for approximately five years except for the breach of the family intervention order (an order Mrs Uluikavoro said she wants rescinded). Mr Uluikavoro did not put forward a concrete plan to seriously tackle his problem with alcohol but told the hearing he wanted to do so. It was not clear that he appreciates the seriousness of the problem and the consequences of inaction. In the Tribunal’s view he must do so, for his own future and the cohesion of his family.
All non-citizens are guests in this country. Whatever visa they hold, it is permission to be in Australia – a permission that may be revoked at any time. Additionally, all people, citizens or otherwise, are expected to abide by the laws of Australia or there will be, as Mr Uluikavoro has found, serious consequences. He was originally dealt with leniently by the courts but flouted orders which led to a suspended prison sentence being restored. The restored prison sentence appears to have been a wake-up call, and then he foolishly breached the family intervention order.
There is no doubt that the Applicant does not pass the character test because of his record of offending. While it has not escalated in seriousness, and it would be remiss not to note that physical violence has not featured as the Applicant became an adult, his persistent drink driving and then ignoring of court orders designed to make him realise danger and seriousness of his conduct seemed to have little impact until his incarceration.
Australia’s criminal justice system provides to the courts a range of tools and it is regrettable that the deterrent sanctions applied to the Applicant did not have an earlier positive impact on his conduct. However, the Tribunal finds that Mr Uluikavoro’s good conduct since March 2013, except for the single breach of the intervention order, strongly supports a conclusion that he has finally learned from his past mistakes, noting that it took the imposition of a gaol term to bring him to that sharp realisation.
His wife and children are clearly already greatly disadvantaged by his absence, both personally and financially. As mentioned, Mrs Uluikavoro told the Tribunal that she intended to apply for the 2013 intervention order to be revoked. Since going into prison, the Applicant has gained a skill, obtained employment, and on the evidence was a good worker, liked and respected by his employer and workmates. He has returned to the positive influence of his church. On the evidence accepted by the Respondent, he has significantly reduced his consumption of alcohol.
Paragraph 8(5) of the Direction provides:
One or more primary considerations may outweigh other primary considerations.
The Tribunal reiterates the remarks above that the Australian community expects non-citizens to be law-abiding and that non-citizens are liable at any time to the revocation of their permission to remain in this country. Taking into account paragraph 6.1(7) of the Principles underpinning the Direction and paragraph 8(5), the Tribunal decides that the primary consideration of the effect on minor children of the cancellation of the Applicant’s visa does outweigh those other primary and secondary considerations in this matter which may either weigh against the Applicant or which are neutral in weight. The Tribunal’s conclusion is that the discretion available to the delegate not to cancel the Applicant’s visa on 1 November 2017 should preferably have been exercised in his favour.

DECISION
The Tribunal sets aside the decision under review and in substitution decides that the discretion not to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under section 501(2) of the Migration Act 1958 should be exercised.

71. I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

[sgd]...........................................................
Associate
Dated: 19 January 2018

Date of hearing:

Applicant

Advocate for the Applicant

Advocate for the Respondent

Solicitors for the Respondent

12 January 2018

In person

Mrs Elina Uluikavoro

Mr Jamie Grant

Sparke Helmore Lawyers

APPENDIX A

[2018] AATA 56

19 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction