Uolilo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2019] AATA 5411

Uolilo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5411 (16 December 2019)
Division:GENERAL DIVISION
File Number: 2018/2951
Re:Valufitu Fiu Uolilo
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:16 December 2019
Place:Sydney

The decision of the Respondent’s delegate dated 27 March 2018 which refused the application for a Partner (Migrant) (Class BC) visa under section 501(1) of the Migration Act 1958 is affirmed.
.................................[sgd].......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – refusal to grant Partner (Migrant) (Class BC) visa – where applicant does not meet character test due to a substantial criminal record – where applicant did not complete his term of imprisonment in Samoa – where applicant did not disclose his criminal record to Australian authorities - whether discretion under section 501(1) of the Act should be exercised to refuse the visa – consideration of Direction no. 79 – protection of the Australian community – expectations of the Australian community – best interests of minor children – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 36, 109, 234, 501
Migration Regulations 1994
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Khorn and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441
Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
Direction no. 75 – Refusal of Protection Visas relying on section 36(1c) and section 36(2c)(b)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
16 December 2019

The Applicant is a 32-year-old Samoan National who is married to an Australian citizen. He is father to four biological children between the ages of two and 16, and has two stepchildren. He first came to Australia in 2012 but only stayed for a short time before returning to Samoa.
In August 2013 the Applicant and his wife applied for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa.
On 30 October 2013 the Applicant was convicted in the Supreme Court of Samoa of the following offences:
·grievous bodily harm; and
·armed with dangerous weapon.
He was sentenced to 24 months imprisonment for the offence of grievous bodily harm and nine months imprisonment for the offence of armed with dangerous weapon, to be served concurrently.
On 9 July 2014 the Applicant was granted a Partner (Provisional) (Class UF) visa. On 31 August 2014 the Applicant arrived back in Australia without having served the full term of his sentence. The Applicant did not disclose his conviction on his incoming passenger declaration form when he entered Australia.
Subsequently on 29 October 2015 the Applicant’s visa was cancelled by a decision of the Respondent under section 109 of the Migration Act 1958 (Cth) (‘the Act’) on the basis that the Applicant had failed to declare his criminal convictions on his incoming passenger card dated 31 August 2014. The Applicant applied to the former Migration Review Tribunal for a review of this decision and on 3 May 2016 that Tribunal set aside the decision of the delegate and the Applicant’s Partner (Provisional) (Class UF) visa was reinstated. On 4 October 2016 the Applicant’s visa ceased.
On 4 October 2016 the Applicant’s application for a Partner (Migrant) (Class BC) visa was refused by a delegate of the Minister as the Applicant did not satisfy the provisions of the Migration Regulations 1994, in that he had provided evidence to the Department that was considered non-genuine. In particular he had provided a police clearance certificate from Samoa to the Department in which his criminal convictions were not recorded. The Applicant then applied to the Administrative Appeals Tribunal for review of that decision.
On 4 October 2016 the Applicant was granted a Bridging A (Class WA) visa and on 12 October 2017 the Tribunal remitted the decision of 4 October 2016 to refuse the Applicant’s request for a Partner (Migrant) (Class BC) visa.
On 27 March 2018 a delegate of the Respondent refused the Applicant’s request for a Partner (Migrant) (Class BC) visa under section 501(1) of the Act. On 29 May 2018 the Applicant applied to the Tribunal for review of the visa refusal decision and on 12 August 2018 the Tribunal affirmed the visa refusal decision. Subsequently the Federal Court found that the Tribunal’s decision of 13 August 2018 was affected by jurisdictional error and the matter was remitted to this Tribunal for reconsideration.
ISSUES
It was agreed by both parties that as the Applicant had received a sentence of imprisonment of more than 12 months as a result of the offences committed in Samoa, the Applicant fails to meet the character test in section 501(6)(a) of the Act as he has a substantial criminal record in accordance with section 501(7)(c).
Accordingly, the sole issue is whether the Tribunal should exercise its discretion in relation to the Applicant’s application for a Partner visa under section 501(1) of the Act.
It is noted that in exercising its discretion, the Tribunal must consider Part B of Direction no. 79, which commenced on 28 February 2019 and replaced the previous Direction no. 65.
EVIDENCE
The Applicant
The Applicant gave evidence that he first came to Australia when he was a primary school student, as a member of the school soccer team. He had come to Australia on one other occasion for a three-month visit to see his wife and children prior to his absconding from gaol in Samoa and arriving in Australia on 31 August 2014 using his Partner (Provisional) (Class UF) visa. He had met his wife in Samoa when he visited her village and they were married in 2012. Together they have four children, the oldest of whom is approximately 16 years old and the Applicant’s wife has two other children from a previous relationship, the oldest of whom is 19 years of age.
The Applicant gave evidence in relation to the circumstances of his conviction in Samoa including the events leading up to his being charged, convicted and subsequently sentenced to 24 months imprisonment.
The incident which led to the Applicant being charged related to the Applicant stepping on what he thought was an empty paper bag. In fact the bag had a pancake in it belonging to a co-worker (‘the victim’) who became very upset about the destruction of the pancake. The Applicant gave evidence that he was verbally abused by the victim and that the victim followed him and continued to do so once they had returned to the workplace. He said that he picked up a piece of pipe from a muffler and hit the victim with it. The Applicant claimed that this was done in self-defence and that he thought the victim was going to harm him.
The Respondent’s representative questioned the Applicant extensively in relation to the violent incident leading to his arrest and subsequent conviction. The Applicant agreed with the Respondent’s representative that the pancake incident had occurred outside work in a nearby marketplace but that he had struck the victim when back in the workplace. He said that the victim had continued to abuse him when they returned to work and had subsequently followed him into the mechanical workshop. The Applicant admitted that he grabbed a pipe from a nearby car muffler, hit the victim and then walked away. The victim was unarmed. There were no witnesses to the incident.
According to the Applicant, he subsequently approached the victim to apologise and in accordance with Samoan custom he made a private agreement with the victim in relation to the incident. The Applicant said that the victim did not give evidence before the Samoan Supreme Court and he felt that if he had given evidence, the Applicant may not have been convicted. A letter from the Managing Director of the company which employed both the Applicant and the victim was presented at the hearing and stated that in the opinion of the writer, the victim had not wanted to press charges against the Applicant.
Subsequently, on 30 October 2013 the Applicant was convicted in the Supreme Court of Samoa of the offence of grievous bodily harm and the offence of being armed with a dangerous weapon. The Applicant was sentenced to 24 months imprisonment for the offence of grievous bodily harm and nine months imprisonment for the dangerous weapon offence, to be served concurrently.
The Applicant said he did not have a lawyer to represent him in the proceedings before the Supreme Court as the police had told him that as matters had all been sorted out beforehand, he did not have to worry about anything. The Applicant also stated that in his opinion if he had a lawyer to represent him before the Supreme Court in Samoa he would not have been convicted.
The Applicant stated that he had not been in trouble with the law previously in either Australia or Samoa and that he had not had any subsequent adverse interaction with the law.
The Applicant gave evidence that while he was in gaol in Samoa he was not in fact confined but was frequently allowed outside the gaol to go to work and was forced to give the money he earned to the police upon his return. He gave evidence that the justice system in Samoa was very corrupt and that he was afraid of the police. He also said that other inmates who had the capacity to make money on behalf of the police were also allowed to leave the prison quite freely.
On the day the Applicant left the prison to go to Australia he gave evidence that he was sent out of the gaol to work in order to make money to give to the police. Having done so he said he was told that he didn’t have to return until dawn of the next day. He said that he then went to the passport office and was given a new passport (his old one having been confiscated by the police). There was no problem in being given a new passport. The passport was issued on the same day and once he had received it the Applicant went to the airport, purchased a ticket and boarded a plane to Australia.
When asked by his representative whether or not he understood that he was required to complete his prison term, the Applicant said that he did but that he left because of what had happened to him in prison, in particular being forced to work and give money to the police. He agreed that he had only served seven months of a 24 month sentence and also claimed that he did not “escape” from prison but rather had been let out. The Applicant said his motivation for leaving the prison and catching the plane to Australia was to see his children.
There was considerable evidence as to the Applicant’s failure to complete his incoming passenger card properly when he came to Australia. The Applicant said that he had signed the document but that he did not really understand it and that a person sitting next to him had actually filled in the form. He admitted that he was worried that if the Australian authorities knew of his offences and the circumstances in which he had left Samoa he may not have been permitted to enter Australia. However he was prepared to face the consequences of not filling in the form properly.
Once in Australia, the Applicant had been able to find work and to contribute to the ongoing maintenance of his family.
The Applicant gave evidence that since he came to Australia he had played a significant role in the lives of his children and was very close to them. Specific evidence was given as to the Applicant’s important role in dealing with a medical emergency involving his son----where the Applicant’s quick thinking and prompt action in taking the child to hospital may have averted a life-threatening incident. The Applicant took care of the children in their daily lives and supported his wife in the care of the children. He is very attached to the children and to his wife.
When asked by the Respondent’s representative as to whether the Australian community had a right to feel safe and protected, the Applicant said that it did and that he did not consider himself a bad person. He said that his behaviour in leaving prison and catching the plane to Australia was him ‘trying to save his life’. He said that he had been concerned about the effect of his criminal offences on his partner Visa.
Applicant’s Wife
The Applicant’s wife gave evidence that she has six children, that she does not work and both before her husband came back to Australia and after she has been a full-time carer for the children. She said that her husband’s income had made a significant difference to the family’s capacity to meet their expenses and that with her husband in detention it was very difficult to meet the financial needs of the family. She gave evidence that she had a period where she had no money at all and that the children were not able to attend school because she had no money for transport or for their lunch. She was very concerned about the children going to school without anything to eat. As a result the Department of Education had notified child welfare authorities and the mother had been required to go to court. A letter from Legal Aid NSW dated 30 July 2019 was provided at the hearing relating to one of the children which advised that the Department had withdrawn the matter, noting that the child’s attendance ‘was not perfect, but that she is doing better’.
The children were said to be very close to their father and he played an important role in their care. The youngest child, Stanfield, suffers from asthma and the wife confirmed the husband’s evidence as to his taking Stanfield to the hospital after a very severe asthma attack. The wife thought the Applicant’s quick action had in fact saved the child’s life.
When asked whether she could move back to Samoa if her husband was to return there, the wife gave evidence that she had left Samoa at the age of 12 and that she did not have family there to help her. She felt she may be forced to go to Samoa because of financial hardship but this would result in significant disadvantage to the children both in terms of the quality of the education they would receive and also because the medical system in Samoa was of a much lower standard than that in Australia. Another motivation for returning to Samoa would be the children’s close relationship to their father who the wife felt they would miss terribly, as they have since he has been in detention.
In his wife’s opinion, the Applicant was likely to be seriously harmed if he returned to Samoa. She felt her husband could be killed by corrupt police because his actions in escaping from prison had exposed the corruption and failures of the system in Samoa and that the police would be seeking retribution.
The wife emphasised the importance of the Applicant to the financial and emotional well-being of the family. The wife gave evidence that if the husband was deported she would face very severe financial hardship.
Mr Sanders
Mr Sanders gave evidence that he is a neighbour of the Applicant and found him to be a humble, calm and helpful man. In Mr Sanders view the Applicant was ‘an all-round good guy’. Mr Sanders had regularly been to the Applicant’s home for family barbecues.
Mr Sanders felt that the incident in Samoa was totally out of character with what he had experienced in his relationship with the Applicant. He only knew what the Applicant had told him about the incident in Samoa but in his view any violent incident was totally out of character.
Mr Sanders gave evidence as to the very bad effect that their father being detained in Villawood has had on the children, including evidence that he had at times heard the children crying, and that he had driven the family to Villawood to see the Applicant every Sunday for about six months. In Mr Sanders view the Applicant’s detention had been absolutely devastating on the family both financially and emotionally. He had loaned money to the family to try and assist them to cope whilst the Applicant was in Villawood.
Ms Kilpatrick
Ms Kilpatrick is the Applicant’s neighbour and had been a neighbour for approximately three years. In her opinion the Applicant was a very kind caring and genuine person who was always ready to help others in the neighbourhood. Ms Kilpatrick gave evidence that she had visited the Applicant’s home regularly as her children like to play with the Applicant’s children. She said she had witnessed the effect on the children as well as the terrible strain on their mother. She said the children were very distressed and their mother was tired and sad.
Ms Reupeno
Ms Reupeno is the Applicant’s sister in law. She gave evidence as to the Applicant’s working as a mechanic in order to financially assist his family. Ms Reupeno said he also assisted his wife at home and spent a significant amount of time helping to care for the children.
In her opinion the Applicant was a caring and humble man and she felt that the incident leading to his conviction in Samoa was completely out of character.
In her opinion the Applicant deeply regretted the incident both in relation to his behaviour and to the toll it had taken on the family.
In Ms Reupeno’s opinion, the Applicant was a hands-on parent. She felt that his children had suffered greatly and that if the Applicant were removed from their lives it would have a devastating effect on all of the children and on their mother. In her opinion all of the family needed a father figure to be around.
DISCUSSION
Given that it is agreed that the Applicant does not meet the character test, it is now necessary to consider the evidence in accordance with Direction 79 (‘the Direction’) in deciding whether or not to exercise the discretion under section 501(1) of the Act.
There are also a number of general guidelines in relation to the exercise of discretion set out in the Preamble to the Direction. The following principles contained in paragraph 6.3 are of particular relevance:
(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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
…...
(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.

Part B of the Direction sets out primary and other considerations that must be taken into account, where relevant, when deciding whether to refuse to grant a non-citizen’s visa. The primary considerations should generally be given greater weight than the other considerations. Those primary considerations are as follows:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
PRIMARY CONSIDERATIONS
The Protection of the Australian Community
When considering the protection of the Australian community, the decision-maker should give consideration to the nature and seriousness of the non-citizen’s conduct to date, as well as the risk to the community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
A number of factors are set out at paragraph 11.1.1(1) to guide the decision maker when considering this principle. Of particular relevance in the current case are the following:
(d)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
….
(h)Subject to paragraph (b) (the principle that violent crimes against women or children are viewed very seriously, regardless of the sentence imposed), the sentence imposed by the courts for a crime or crimes;
(i)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(j)The cumulative effect of repeated offending;
(k)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(l)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant was convicted and sentenced to a term of imprisonment of 24 months for the offences of grievous bodily harm and being armed with a dangerous weapon by the Supreme Court of Samoa in relation to an incident which occurred in Samoa. On the basis of the evidence, this was a “one off” offence and there is no indication of any violent re-offending. Certainly no further charges have been laid.
I note that paragraph 11.1(1) of the Direction is of particular importance in considering this issue. It provides as follows:
When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
The Applicant put forward a number of matters in mitigation of his offence including that the victim was the aggressor in the violent incident; that the Applicant acted only in self-defence; that he had never had any prior convictions; and that the police had told him to plead guilty when the matter was taken to court, that he did not need a lawyer and that the consequences would not be serious. In the Applicant’s view, he was sent to prison because of a corrupt statement on the part of the police, made to the court.
I accept that the Applicant did not have any previous criminal record. I also accept his evidence as to the circumstances of how the offences of which he was found guilty occurred.
The difficulty for the Applicant is that the offences of which he was found guilty, namely grievous bodily harm and being armed with a dangerous weapon, are very serious. He does not deny assaulting the victim.
The Applicant did not have a lawyer for the Supreme Court proceedings. He stated that he was told by the police that he did not need a lawyer and did not pursue the matter further.
Whilst the Applicant is free to raise matters before the Tribunal related to his offence, the Tribunal cannot, and in my view should not, contradict or impugn a conviction by a Court, nor the facts upon which that conviction was based. This is well established in a number of cases including Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247; and Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441.
The Applicant was sentenced to a period of 24 months imprisonment. Given that imprisonment is usually a last resort, the severity of the offences is reflected in the length of that sentence. As Senior Member Poljak observed in PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] (footnotes omitted):
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to period of imprisonment totalling 96 months (eight years) and 30 days as a result of his offences.
The Applicant’s conduct in Samoa would attract criminal penalties in Australia if he were to commit the same offences in this country.
After he was convicted and sentenced the Applicant failed to serve his sentence as required and left the prison after serving only seven months in order to come to Australia. In evidence, the Applicant admitted that he knew that he was required to serve the full period of his sentence.
On arrival in Australia the Applicant failed to disclose his criminal convictions on his incoming passenger card and answered the relevant questions falsely. The Applicant admitted that he had answered falsely but claimed that another person had filled in the card for him and also that he was worried about the effect of disclosing his offences.
The Applicant also provided the Department with a false police clearance certificate from Samoa in which his criminal convictions did not appear. This document was provided in support of his application for a Partner (Migrant) (Class BC) Visa. When that application was considered by the Migration & Refugee Division of the Tribunal, it was found that the information provided by the Applicant to the Department was false and misleading. Such conduct is considered to be very serious as noted by Deputy President Handley in Khorn and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705 where he stated that ‘a person’s truthfulness in the immigration process is of paramount importance’.
I note that serious penalties are provided under section 234(1)(c) of the Act in relation to making false statements to the Department in connection with entry or immigration clearance into Australia.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Respondent raised the risk that the Applicant would reoffend. On the basis of the evidence presented, namely that the Applicant had no previous convictions in Samoa prior to his conviction in 2013 and has not been convicted of any criminal offence in Australia, I am of the opinion that the possibility of him committing a violent crime in Australia is low. I note however paragraph 11.1.2(1) and 11.1.2(2) of the Direction make it very clear that any likelihood that violent crime may be repeated may be unacceptable and also that there is a ‘low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa’.
It cannot be overlooked that the Applicant knowingly failed to serve the term of his prison sentence in Samoa and was prepared to give false information to the Australian authorities. He was also prepared to blame others, for example the police in Samoa and the fellow passenger who he claims completed his Incoming Passenger Card, for offences committed by him. It is therefore reasonable to conclude that the Applicant lacks respect for the requirements of the law and the justice system. This is inconsistent with the values of the Australian community and poses a serious risk to the community where an Applicant is prepared to lie to relevant authorities for personal gain. Dishonesty corrodes trust in the community and can lead to significant harm and cost to others. It also impedes proper public administration.
After considering the totality of the evidence given to the Tribunal, in light of the principles contained in the Direction, I find that the Applicant has been found guilty of serious criminal conduct, has engaged in further serious conduct by failing to serve his prison sentence, and that he has engaged in a pattern of on-going deception of the relevant Australian authorities which must be viewed extremely seriously. Accordingly the Applicant must be considered a risk to the community. I give significant weight to this primary consideration which weighs heavily in favour of refusal.
The best interests of minor children
The Applicant has four biological children and two stepchildren. All of his biological children are minors, as is one stepchild. The oldest stepchild is 19 years of age and is therefore not relevant to this consideration. The other five children’s ages are as follows:
·16 years;
·7 years;
·6 years;
·4 years;
·2 years.
Considerable evidence was given as to the close relationship between the Applicant and all of his children, including his younger stepchild. Indeed, the Applicant gave evidence that one of the primary motivations for him failing to serve the term of his prison sentence in Samoa and coming to Australia was that he missed his children and really wanted to be with them.
Despite the fact that the Applicant had spent time in Samoa whilst the children were in Australia, it is quite clear on the evidence that he has always been an important part of their lives and clearly continues to be loved by his children.
The Applicant’s wife, Mr Sanders, Ms Kilpatrick and the Applicant’s sister-in-law all gave evidence as to the important role the Applicant played in the daily lives of his children. I accept this evidence. The Applicant is clearly a loving father with a genuine desire to be a positive part of the lives of all of the children. He was described as a hands-on parent but also one who set boundaries for his children.
I accept the evidence of the Applicant’s wife as to the difficulty she has had in coping without the financial and emotional support of the Applicant. It is a matter of great concern that when the Applicant was first detained at Villawood the family suffered from significant financial stress which led to the children not attending school and the subsequent intervention of the authorities which necessitated the Applicant’s wife to appear before the children’s Court.
Mr Sanders gave evidence of the Applicant attending church regularly with his wife and children, of the great distress suffered by the children whom he heard crying regularly once their father had left and the efforts that were made to allow the children to visit their father at Villawood.
The Applicant’s wife gave evidence as to the difficulty the family would face if she and the children were forced to move back to Samoa in order to be close to the Applicant. It is likely that the children would not have access to the same level of education or medical care which is available to them in Australia. Having regard to the evidence and to the ages of the children I find that there would be significant and ongoing harm to the children as a result of them being separated from the Applicant.
Although the children would have their mother to care for them, in the absence of the Applicant it was quite clear from the evidence of the mother, Ms Kilpatrick and the mother’s sister that she would really struggle to care for the children alone.
I give very significant weight to the likely harm to the children if the Applicant is forced to return to Samoa and find that it would be in their best interests for the Applicant to be granted the visa. I find this primary consideration to weigh heavily against refusal.
Expectations of the Australian community
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3.
The Direction makes it very clear that the Australian community has a very low tolerance for those convicted of major crimes either in Australia or elsewhere. The principles emphasise that it is an expectation of the Australian community that those permitted to remain in Australia have an appropriate respect for the law, have not committed serious offences and have appropriate respect for major institutions (which would include the Courts) and are unlikely to cause harm to the Australian community.
The principles set out in paragraph 6.3 of the Direction (outlined above) are relevant when considering what weight is to be given to the expectations of the Australian community. Of particular importance in this matter is paragraph 6.3(2) which makes it clear that the community expects the government to refuse entry or cancel of visas of those who have committed serious crimes in Australia or elsewhere.
Although the Applicant’s offence in Samoa appears to have been a one off and could perhaps even be described as ‘out of character’, it does appear from the evidence that it resulted in the victim seeking treatment in hospital. Further, the Applicant subsequently failed to serve the term of a sentence of imprisonment and although the circumstances of his leaving Samoa raise serious issues as to the alleged behaviour of the authorities there, the Applicant understood that he had an obligation to serve the entire period of his sentence in Samoa.
The difficulty for the Applicant under this consideration is made worse by the fact that he did not disclose his offences when entering Australia and that he presented a false police clearance certificate from Samoa to the Department as part of a visa application.
The need for those who have complied with Australian law in relation to immigration and visa requirements to not be disadvantaged in favour of those who have not complied with the law has been well recognised in a number of Tribunal decisions including Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 where Deputy President McMahon said at [26] that the Australian community had:
…an expectation that no person of any nationality should be rewarded for attempting falsely to obtain immigration benefit to which that person was not entitled.
Taking all of the evidence into account, it is impossible to overlook the Applicant’s untruthful, false and misleading conduct in relation to his arrival in Australia and his application for a visa. An understandable and laudable desire to be with one’s children cannot excuse or outweigh this behaviour.
It is quite clear that the expectations of the Australian community, as reflected in the Direction, weigh in favour of refusing to grant the Applicant the visa.
I give substantial weight to this consideration.
OTHER CONSIDERATIONS
Paragraph 12(1) of the Direction also specifies that other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
The Applicant also made submissions regarding other relevant considerations that I have taken into account, namely the risk of harm to the Applicant if he were to return to Samoa (separate from international non-refoulement obligations) and concerns over the Applicant’s health.
International non-refoulement obligations
It was submitted by the Applicant that he would face significant harm if he were to be removed to Samoa, and that this could give rise to non-refoulement obligations. He claims that he has these fears due to the manner in which he left Samoa which resulted in media attention which has shed light on systematic corruption in the Samoan police and prison systems.
Paragraph 12.1(4) of the Direction provides as follows:
Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
In Minister for Immigration and Border Protection v Le [2016] FCAFC 120, the Full Federal Court set out a non-exhaustive summary of principles relating to whether Australia’s non-refoulement obligations are a mandatory consideration when exercising the discretionary powers conferred by subsections 501(1) or (2). Their Honours relevantly state at [61]:
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(e)in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused…
It is therefore not necessary for me to determine whether non-refoulement obligations are owed for the purpose of determining whether the visa should be refused as it is open to the Applicant to make an application for a protection visa. I note that if the Applicant were to make such an application, Direction no. 75 requires the decision-maker to assess whether the Applicant is owed protection obligations because they are a refugee (section 36(2)(a)) or are owed complementary protection (section 36(2)(aa)) before any character concerns are considered.
Impact on family members
Mr Sanders, Ms Kilpatrick and the Applicant’s sister-in-law all gave cogent evidence, which I accept, as to the very detrimental impact on the Applicant’s wife and children if he were removed from Australia. It was clear from the evidence that the Applicant’s wife is very dependent on him both financially and in relation to assisting her with the care of the children. She was described as being very sad all of the time since the Applicant has not been at home.
Similar evidence was also given as to the detrimental effect on the children emotionally, in relation to their school attendance, and their focus on spending time with their father even whilst he has been detained at Villawood.
It was submitted by the Applicant that his ongoing stomach condition, which he submits is potentially cancerous, would adversely impact his children and wife if he were to be separated from them. However as will be discussed later, it is at this stage unclear whether or not the Applicant’s condition is serious.
Taking all of the evidence into account, this consideration clearly weighs against refusal.
Impact on victims
There is no evidence before the Tribunal of any impact on victims if the visa were granted.
Impact on Australian business interests
Although the Applicant has skills as a motor mechanic and produced a letter from his former employer as to his benefit to the business, it is clear that he does not have the sort of skills envisaged by paragraph 12.4 of the Direction. There would be no impact on Australian business interests if the Applicant were not granted the visa.
Risk of harm upon return to Samoa

The Applicant gave evidence at the hearing about corruption in Samoa, particularly in the police force. He said that he was at risk of serious harm if he were to be returned to Samoa, because his departure from Samoa having only served a portion of his prison sentence had focused adverse attention onto the police.
The Applicant’s wife said that he would be likely to be killed if he were to return to Samoa. A newspaper article was given in evidence which outlined the circumstances as to the death of a man in police custody in Samoa. The Respondent submitted that this article could be given little weight as there was no evidence linking those events to any likely treatment of the Applicant.
The circumstances of the Applicant leaving Samoa certainly raise questions about the prison system and the police, as does the evidence that he was sent out from gaol to work each day but had to give the money earned to the police when he returned. Other media articles contained in the evidence indicate that there have been investigations into corruption in the Samoan prison system.
It appears somewhat extraordinary that the Samoan authorities were so inattentive that the Applicant was able to get a new passport, purchase an airline ticket and board a flight to Australia all within a 24 hour period, without the authorities appearing to notice.
On the basis of the limited evidence available, I find there is a risk of harm to the Applicant if he were to return to Samoa. The circumstances of his departure certainly appear extraordinary and it may be that he has drawn unwanted attention to failures in the system. Certainly the Samoan authorities want him back. There is however not sufficient evidence to enable a determination as to the degree of risk the Applicant personally would be likely to face and more evidence would be required in order to make such an assessment.
Accordingly, I find that the Applicant is at risk of harm if he was to return to Samoa and that this weighs against a refusal to grant the visa. However, I attach very limited weight to this issue given the lack of evidence.
Health Issues
During the hearing the issue of the Applicant’s health was raised. Of particular concern was a stomach condition. At the hearing the Applicant gave evidence that his General Practitioner had indicated a possibility of it being stomach cancer. Medical evidence filed with the Tribunal following the conclusion of the hearing indicates that the Applicant suffers from an infection caused by ‘Helicobacter pylori’ which has not responded to antibiotic treatment. The Applicant was referred to a specialist for review of his condition but at this stage it is not possible to determine whether it is serious.
Otherwise the Applicant’s general health appeared to be satisfactory. In particular he said that his mental health was good because of the love and support he received from his wife and family.
On the basis of the evidence before me, I find that the Applicant does have a stomach infection that requires further diagnosis and treatment. It cannot presently be determined whether or not it is serious, or potentially life threatening. The concern appears to arise more from the antibiotic resistance and this was the reason for further tests to be carried out.
The Applicant provided travel advisory documents which indicate that health care facilities in Samoa are adequate for routine medical treatment, but serious or complex illnesses and emergencies generally needed to be treated in other neighbouring countries.
I accept that if the Applicant’s condition is serious it is likely that the Applicant would be best treated in Australia, but that is not currently known. I also note that as a citizen of Samoa the Applicant would be entitled to the same health and support services available to all Samoan citizens.
I find that the state of the Applicant’s health weighs against refusal however I give limited weight to this consideration.
DECISION
Taking into account all of the evidence and having regard to the various considerations outlined above, the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh other considerations, even though I am particularly concerned about the Applicant’s children and have given this consideration significant weight.
The decision of the Respondent’s delegate dated 27 March 2018 which refused the application for a Partner (Migrant) (Class BC) visa under section 501(1) of the Migration Act 1958 is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate
Dated: 16 December 2019

Dates of hearing: 16 & 17 September 2019

Date final submissions received: 12 November 2019

Advocate for the Applicant: Mr F Nikjoo

Solicitors for the Applicant: Nikjoo Lawyers

Advocate for the Respondent: Ms E Wallis

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	16 & 17 September 2019
Date final submissions received:	12 November 2019
Advocate for the Applicant:	Mr F Nikjoo
Solicitors for the Applicant:	Nikjoo Lawyers
Advocate for the Respondent:	Ms E Wallis
Solicitors for the Respondent:	Clayton Utz