Va'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 573

Va'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 573 (1 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/9753

Re:John   Va'a

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member P.Q. Wood

Date of decision:  1 March 2022

Date of written reasons:         30 March 2022

Place:Melbourne

The Tribunal affirms the decision under review.

.....................[sdg]...................................................

Senior Member P.Q. Wood

Catchwords

MIGRATION – Mandatory cancellation of visa – non-revocation of mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – New Zealand Citizen – whether applicant passes character test – failure to pass character test – past criminal conduct –  where Applicant made representations seeking revocation of visa cancellation – where delegate not satisfied of another reason to revoke visa cancellation – where Applicant seeks review by Tribunal – contents of Direction 90 – substantial criminal offending – best interests of minor children – protection of the Australian community – expectations of the Australian community – ­­ Applicant’s drug use and driving offences – links to the Australian community – other relevant considerations ­­– extent of impediments if removed – decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials

Australian Government Department of Health, National Drug Strategy 2016–2026 (2015)

Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021) Final Report of the National Ice Taskforce (6 October 2015)

REASONS FOR DECISION

Senior Member P.Q. Wood

INTRODUCTION

1. By application made on 15 December 2021, Mr John Va’a (the Applicant) seeks review of a decision made on 6 December 2021 by a delegate of the Minister (the Respondent) not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) made under s 501CA of the Migration Act 1958 (the Act).

2. The application for review is made in accordance with s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions made under s 501(1) of the Act.

3. The Tribunal hearing was held on 17 February 2022 by videoconference, as permitted by s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency.

4. The Applicant was represented by Mr McComber. The Minister was represented by Mr Orchard.

5. The Tribunal heard oral evidence via video link from the Applicant and his sisters, Leticia Va’a, Teresa Va’a and Jackie Va’a.

6. The Tribunal made a decision in relation to this matter on 1 March 2022. In accordance with s 43(2A) of the AAT Act, these are the written reasons for the decision.

   Background

   Personal

7. The Applicant is a 29-year-old citizen of New Zealand. He has three older siblings and two younger siblings. He also claims to have a son who is 3 years old with a woman who has already been removed from Australia in relation to drug-related offending. For completeness, I note that the Applicant is not listed as the father on the birth certificate.[1] Notwithstanding this, I have proceeded on the basis that the Applicant is the father.

   [1] Exhibit R1, 93.

8. The Applicant first travelled to Australia with his family in June 1994. His family moved back to New Zealand in 2003 before returning to Australia in July 2004. The Applicant has ordinarily resided in Australia since this time.[2]

   [2] Ibid, 129.

9. The evidence indicates that the Applicant began using methamphetamine in 2018, at which point he began criminal offending.[3]

   [3] Ibid, 93.

10. The Applicant’s convictions in Australia commenced in mid-2018, whilst his girlfriend at the time was pregnant.[4]

    [4] Respondents Statement of Facts, Issues and Contentions (‘RSFIC’) [6].

11. On 1 October 2020 the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act on the basis that he had a ‘substantial criminal record’[5] and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law in Australia.

    [5] The Act s 501(7)(c) – provides that for the purposes of the character test a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

12. It is appropriate that I set out below, in summary form, the Applicant’s criminal history in Australia, and the sentences imposed upon him.

    Criminal offending

13. The Applicant has a criminal history dating back to June 2018, comprising of the following offences:

    (a)In June 2018, the Applicant committed a drug-related offence for which he was fined without conviction;[6]

    (b)In April 2019, fines and probation were imposed upon the Applicant for multiple instances of failing to appear in accordance with an undertaking, and for other drug and possession of weapon offences;[7]

    (c)In February 2020, the Applicant was convicted of failing to appear in accordance with an undertaking and sentenced to three months imprisonment;[8]

    (d)On 22 May 2020, the Applicant was convicted of offences including multiple possession and drug-related charges, stealing, evasion, breach of probation and dangerous operation of a vehicle.[9] He was sentenced to concurrent terms of imprisonment of three months, and 12 months;[10] and

    (e)On 18 November 2020, the Applicant was convicted of the offences of obstructing a police officer and unlawful use of a motor vehicle. He was sentenced to concurrent terms of three months, and six months imprisonment.[11]

    [6] Exhibit R1, 32.

    [7] Ibid.

    [8] Ibid.

    [9] Ibid, 31-32.

    [10] Ibid.

    [11] Ibid, 30-31.

    legislative framework

14. The issues before the Tribunal are:

    (a)whether the Applicant passes the character test as defined under s 501(6) of the Act; and

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

    (A) Does the Applicant pass the character test?

15. The character test is defined in s 501(6) of the Act. It refers to a range of matters that the Minister or their delegate may have regard to, in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa.

16. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’. The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more.

17. The Applicant accepted in his Statements of Facts, Issues and Contentions (ASFIC) that, for the purposes of s 501CA(4)(b)(i) of the Act, the Respondent cannot be satisfied that the Applicant passes the ‘character test’.[12]

    [12] Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) at [2(b)].

18. I refer to my remarks above concerning the Applicant’s criminal offending and the sentences imposed upon him. I find that that the Applicant does not pass the character test. 

    (B) Is there another reason for the revocation of the cancellation of the Applicant’s visa?

19. Guidance is found in Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

20. It is accepted that the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined, therefore, is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:[13]

    There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

    [13] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.

    DIRECTION 90

21. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[14]

    [14] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The Principles in Paragraph 5.2

22. Paragraph 5.2 of the Direction is designed to ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act.

23. Summarised where appropriate, the principles are:

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

    (b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

    (c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

    (d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    Primary and Other Considerations

24. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ which I must be guided by in making my decision.

25. The Primary Considerations that I must take into account are:

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

    (b)whether the conduct engaged in constituted family violence; [15]

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.[16]

    [15] This consideration is not relevant to this application.

    [16] Direction [8].

26. The Other Considerations which, where relevant, that I must take into account include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia;

    (ii)impact on Australian business interests.[17]

    [17] Direction [9(1)].

27. Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:

    (a)Information from independent and authoritative sources should be given appropriate weight;

    (b)Primary Considerations should ‘generally’ be given greater weight than Other Considerations; and

    (c)One or more Primary Considerations may outweigh other Primary Considerations.

28. The guidance in paragraph 7 of the Direction quoted above does not materially differ from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:

    …Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[18]

    [18] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 [23].

29. I now turn to addressing the abovementioned Primary and Other considerations.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

30. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle that the:

    Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

31. In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration 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.

32. At the outset, I observe that the Applicant acknowledges that this Primary Consideration “could never” weigh in favour of the Applicant.[19]

    Application of Factors in Paragraph 8.1.1(1) of the Direction

    [19] ASFIC at[9].

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

33. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)    violent and/or sexual crimes;

    (ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)  acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)  any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

34. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

35. I have set out the Applicant’s criminal offending above.

36. The Applicant’s offences are unlike the particularised crimes and conduct described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)) or “serious” (para 8.1.1(1)(b)). The offences and conduct pronounced in those sub-paras are however not exhaustive, and this Tribunal, differently constituted, has on various occasions deemed other offending as “very serious” or “serious”.

37. In cross examination, the Applicant admitted that he was involved in a police chase where he almost collided with a police officer who was deploying “stingers” in an attempt to stop his vehicle.[20]

    [20] Transcript at P-29.

1. In sentencing the Applicant on 22 May 2020, His Honour Magistrate Simpson of the Magistrate’s Court of Queensland said:

   One thing then leads you to taking probably the most dangerous and disgusting drug that we have seen in society, and that is bound to ruin your life and does. And you have become the poster child for that.[21]

   [21] Exhibit R1, 46.

2. On the same day, describing the Applicant’s offending, the learned Magistrate said:

   You then drove off at speed, a police officer, clearly identified by his uniform, trying to deploy stingers to get you out of the way. So you could have run over a police officer. You drove on the wrong side of the road through stop lights - stop signs. So you created a danger to other motorists at that point.

   You then mound the - a footpath and you drive for a distance along there. Pedestrians had to get out of the way. You could have killed somebody. You could have killed somebody. Your dangerous behaviour is serious.[22]

   [22] Ibid.

3. I consider the Applicant’s most serious offending, namely the dangerous operation of a motor vehicle, to be of a very serious nature.

4. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

5. I refer to my remarks immediately above.

6. I observe that on 18 November 2020 the Applicant was convicted of obstructing a police officer.[23] Whilst the Applicant denies this, the relevant circumstances are said to have involved the Applicant becoming aggressive towards police as they arrested him in relation to the unlawful use of a motor vehicle, ultimately deploying capsicum spray in their apprehension of him.[24]

   [23] Ibid, 30.

   [24] Transcript at P-31 and P-32.

7. The Applicant’s representative correctly acknowledged that a police officer is a government representative or official for these purposes,[25] and I find that the Applicant’s conduct occurred whilst police were in the performance of their duties and that the offending was of a serious nature.

   [25] Ibid, P-54.

8. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen.

9. I have referred to the relevant sentences above. I observe that the most recent sentence of some duration was the sentence of 12 months imprisonment, which is, on any assessment, significant.

10. I find that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.

11. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

12. As I have mentioned above, the Applicant’s offending commenced in 2018. He committed at least 31 offences.[26] His most recent serious offending took place in 2020, whilst he was on parole.

    [26] Exhibit R1, 30-33.

13. I find that the Applicant’s offending has been frequent and involves a clear trend of increasing seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction.

14. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.

15. I consider that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources required to hold him responsible. This includes the costs borne by the broader community to provide the necessary police resources, and the further expense of the Courts, Corrections and wider justice system.

16. I am of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.

17. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

18. The application of this sub-paragraph is not relevant to the Applicant in this case.

19. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been formally warned, or since otherwise being made aware in writing about the consequences of further offending, in terms of the non-citizen’s migration status (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).

20. I do not consider the Applicant to have been formally warned or otherwise made aware in writing about the consequences of further offending, in terms of his migration status, as provided by the Direction.

21. The application of this sub-paragraph is therefore not relevant to the Applicant in this case.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

22. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

23. Paragraph 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

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

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)    information and evidence on the risk of the non-citizen re-offending; and

    (ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    (a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

24. Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.

25. The Applicant contends that all his offending has occurred in Queensland, and that he will return to Victoria where he will abstain from using drugs and not engage in further criminal or other serious conduct, thereby causing no harm to individuals or the Australian community.

26. The Respondent contends that, if the Applicant were to reoffend or engage in other serious conduct, the nature of the relevant harm is “wide reaching”.[27] I agree.

    [27] RSFIC at [31].

27. As I have referred above, the Applicant has a history of using methamphetamine. The ’Final Report of the National Ice Taskforce’, outlines the impact of methamphetamine in the community:

    ‘Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.’[28]

    [28] Final Report of the National Ice Taskforce (6 October 2015).

28. The ‘National Drug Strategy (2016–2026)’ itemises the impact of the unlawful trade in illicit drugs across various sectors of the community’s resources ranging from health, to social and economic harms:

    ‘Impacts can include:

    ·         Health Harms such as:

    ·injury;

    ·chronic conditions and preventable diseases (including lung and other cancers; cardiovascular disease; liver cirrhosis);

    ·mental health problems; and

    ·road trauma.

    ·         Social Harms including:

    ·violence and other crime;

    ·engagement with the criminal justice system more broadly;

    ·unhealthy childhood development and trauma;

    ·intergenerational trauma;

    ·contribution to domestic and family violence;

    ·child protection issues; and

    ·child/family wellbeing.

    ·         Economic Harms associated with:

    ·healthcare and law enforcement costs;

    ·decreased productivity;

    ·associated criminal activity; and

    ·reinforcement of marginalisation and disadvantage.’[29]

    [Emphasis in original.]

    [29] Australian Government Department of Health, National Drug Strategy 2016–2026 (2015).

29. I consider that the Applicant’s driving is relevant. I observe that the Applicant’s offending has occurred in the context of him never having obtained a full driving license and in using motor vehicles in breach of the law. Road trauma has already been referenced above and, in considering the relevant harm, it is common knowledge that road trauma has an ongoing and profound effect, not just on the individuals involved, but also on their families, bystanders, and first responders. Whilst the Applicant’s driving to date has not resulted in harm, it easily could in the future.

30. I consider that there is little to be said against the contention that the nature of harm, in the event of the Applicant recommitting similar or identical unlawful conduct as set out above, would involve physical and/or psychological harm, with a more than realistic possibility of such harm resulting in devastating consequences.

31. I observe that the terms of the Direction have direct application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s offending over several years, were that offending to be repeated, the resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable.

32. I am of the view that reasonably minded members of the Australian community would regard the Applicant’s offending, as set out above, as so serious that they would refuse to accept any risk of a recurrence.

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

33. The Applicant’s representative contended that the Applicant’s drug use and offending was localised. As I have mentioned above, the Applicant contends that he will relocate to Melbourne, abstain from using drugs in the future, and not engage in further criminal or other serious conduct.

34. The Applicant submits that his risk of reoffending is low based upon the following:[30]

    (a)  [the Applicant] did not start criminal offending or engaging in other antisocial behaviour until he was 25 years old – he does not have a long history of being engaged in criminal offending or other serious conduct;

    (b)  [the Applicant’s] criminal offending coincided with the onset of a drug dependency, which our client has taken steps, and will continue to take steps, to address;

    (c)   [the Applicant’s] drug use and offending occurred in the context of dislocation from his family and if our client is allowed to remain in the Australia community, he intends to relocated [sic] to Melbourne so that he can have the support of his parents and siblings; [and]

    (d)  [the Applicant] now realises that, even if the mandatory cancellation of his visa is revoked, any future criminal offending or incarceration is likely to result in the mandatory cancellation of his visa.

    [30] ASFIC at [16].

35. It is acknowledged by the Applicant that “should [the Applicant] engage in further criminal offending, particularly of a kind that involves the dangerous operation of a motor vehicle (an offence he has committed once), such offending would present a risk to members of the Australian community.”[31]

    [31] ASFIC at [17].

36. I observe that the Applicant completed a Short Substance Intervention Program and obtained employment in prison.[32]

    [32] Exhibit R1, 44.

37. I acknowledge that in his statement dated 24 November 2020 (Statement),[33] the Applicant states that he will be engaging in rehabilitation were he to be released into the community. He identified in this Statement that there was a church-run 12-step program available to him and made reference generally to outpatient rehabilitation. I observe that the Applicant has expressed a desire to complete a substance misuse course and complete an agricultural course.

    [33] Ibid, 92-96.

38. I accept the Applicant’s oral testimony that he attended two Alcoholics Anonymous meetings in the month prior to the Tribunal hearing.[34]

    [34] Ibid, 96.

39. I have also read and had regard to a statement provided by Pastor Judith Faauli, a relative of the Applicant, from First Love Jesus Ministries. In this statement the Pastor states that the Applicant may be able to participate in fortnightly men’s groups via online platforms and, with restrictions easing, face-to-face groups.[35] Whilst this is commendable, I observe that the Applicant has had family support in the past, and this has proved to be an insufficient protective factor.

    [35] Exhibit R1, 120.

40. The Respondent submitted that there remains an unacceptable risk that the Applicant will reoffend. The Respondent submitted that the Applicant’s rehabilitative course was “singular, short and limited” and undertaken a number of years ago. The Respondent made reference in its submissions to the Applicant having failed to undertake a urine test when required,[36] not having had visits from family since 2019 while he was in prison (until 20 January 2021),[37] limited family support, lack of psychological risk assessment, the Applicant reoffending soon after his release in May 2020, and the Applicant’s “blatant disregard” to Australia’s road laws.[38]

    [36] RSFIC at [33]; Exhibit R1, 44.

    [37] Ibid.

    [38] RSFIC at [33].

41. I agree that the before mentioned course was brief. I am concerned by the Applicant’s history with respect to urine testing. I do not place weight upon the family visitation issue because of the global pandemic and my overall assessment that the Applicant’s family does support him (even though they have proved to be an insufficient protective factor). Given the Applicant’s means, the lack of a psychological report should not be held against him. I acknowledge that the Applicant reoffended soon after his release in May 2020 and this is of concern in this proceeding. I agree that the Applicant does appear to have a disregard to Australia’s road laws.

42. Having considered all the material before me, I consider that if the Applicant were released into the community, with wider access to drugs and increased stressors, were he to relapse into abusing drugs, he would in all likelihood engage in similar offences as described above.

43. In all the circumstances, I consider that whatever rehabilitative benefit the Applicant may have received to date, it falls well short of the level necessary for the Tribunal to conclude that he would be unlikely to engage in further criminal or other serious conduct.

    Conclusion: Primary Consideration 1

44. I find that:

    (a)The nature of the Applicant’s offending is very serious;

    (b)Were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm to the Australian community, quite conceivably, to a devastating level; and

    (c)In terms of risk of recidivism, there is a reasonable likelihood that he will engage in further very serious offending or other serious conduct if returned to the Australian community.

45. In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration 1 weighs very strongly in favour of non-revocation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

46. Paragraph 8.2 of the Direction provides: 

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (a)  This consideration is relevant in circumstances where:

    (b)  a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (2)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    (a)  the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    (b)  the cumulative effect of repeated acts of family violence;

    (c)   rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    (i)the extent to which the person accepts responsibility for their family violence related conduct;

    (ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    (iii)efforts to address factors which contributed to their conduct; and

    (d)  Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

47. Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen.

48. During the course of this review there was some debate as to whether the Applicant was subject to a domestic violence order in 2019, after the Applicant had a dispute with his sister. The Applicant acknowledges that he had an argument with his sister concerning his use of drugs. I accept that an argument of some kind occurred. I recognise that families engage in arguments, especially concerning issues of drug use by family members. In terms of family violence however, in the absence of being provided with relevant documentation, having considered all the evidence, including the oral testimony, I cannot be satisfied that the Applicant was subject to such an order.

    Conclusion: Primary Consideration 2

1. This Primary Consideration is not relevant to the application at hand.

   PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN

2. Paragraph 8.3 of Direction No 90 provides, in part:

   (1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

   (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

   (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

3. Paragraph 8.3(4) of Direction No 90 continues to outline the factors that a

   
   

   decision-maker must consider when determining the best interests of a child affected by the decision:

   (4)In considering the best interests of the child, the following factors must be considered where relevant:

   (a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

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

   (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

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

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

   (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

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

   Identification of Relevant Children

4. It is first necessary to identify the children relevant to this proceeding.

5. In my view the relevant children are:

   (a)The Applicant’s son, born in December 2018;[39] and

   (b)14 nieces and nephews in Australia who are minors.[40] I note that details of only 8 are provided in the ASFIC.[41] (I also discuss the Applicant’s relationship with some of these children in my consideration of the Applicant’s ties further below).

   [39] Exhibit R1, 128.

   [40] ASFIC at [22].

   [41] Ibid, [25].

   Consideration of Factors

6. Sub-paragraph (a) of paragraph 8.3(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where ‘(1) the relationship is non-parental, (2) there is no existing relationship, (3) there have been long periods of absence, or (4) there has been limited meaningful contact (including whether an existing Court order restricts contact)’.

7. I observe that the Applicant admitted in cross examination that his offending and drug use began soon after he learned that his partner was pregnant with his son.[42] In fact, the Applicant told the Tribunal that he took methamphetamine with his pregnant partner when he was aware that she was pregnant.[43] The Applicant said that his reason for doing so was that he was depressed about his previous relationship.[44]

   [42] Transcript at P-19.

   [43] Ibid

   [44] Ibid.

8. The Applicant acknowledges that he has not played an active role in his claimed son’s life to date.  The following is noted in the ASFIC:[45]

   (a)Prior to his imprisonment, [the Applicant] had been in communications with Child and Family Services to enquire about [the child’s] care;

   (b)[the child] does not currently have a parental caregiver as his mother was removed to New Zealand in consequence of being convicted of a number of drug related offences; and

   (c)While [the child] is in care of the Department of Child Safety in Queensland, it is submitted that it is in his best interests for him to be in the care of the Applicant’s family (initially) and the applicant (once he is determined to be an appropriate person to having the care of [the child];

   (d)Had [the Applicant] been listed on [the child’s] birth certificate as his father, [the Applicant’s] family would have pursued taking [the child] into their family for care.

   [45] ASFIC at [23].

9. In his statement, the Applicant states that his son’s mother was removed from Australia around January 2020 following her own drug-related offending.[46]

   [46] Transcript at P-21.

10. In cross examination, the Applicant told the Tribunal that when he was released in May 2020 he was living with his brother and he tried to re-engage with his son’s caseworker from the relevant government department by making a telephone call. The Applicant told the Tribunal that he was informed that they would call him back, but a month and a half later he ended up reoffending and did not then pursue his enquiry further.

11. I acknowledge the Applicant’s concessions in relation to his limited involvement with his son. I acknowledge the Applicant’s assertions that he would like to “gain custody” of his son in the future.[47] I observe that the Applicant has expressed a desire for his son to know him and his wider family.

    [47] Exhibit R1, 96.

12. Having heard the oral testimony, with reference to his nieces and nephews, I am of the view that while not a parental relationship, the relationship between these children and the Applicant has been close over the course of their lives. I am of the view that whilst the Applicant has been physically absent more recently, this is not a sufficiently great period to have an ongoing impact or such that there is no existing relationship.

13. I am mindful that less weight should generally be given where the relationship is non-parental, as is the case between the Applicant and his nieces and nephews.

14. I am of the view that a moderate level of weight  can be allocated to this sub-paragraph (a) of paragraph 8.3(4) in favour of a finding that it is in the best interests of each of the relevant children for the Applicant’s visa status be restored to him.

15. Sub-paragraph (b) of paragraph 8.3(4) requires a decision-maker to consider the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.

16. In relation to the Applicant’s son, it is unlikely that the Applicant will play a parental role in the immediate future. This is because his son is in the care of the Queensland government. In his Statement, the Applicant acknowledged that it could take some time for him to be reunited with his son. How positive the Applicant’s parental role will be in the mid to long-term on the Applicant’s son, and on his nieces and nephews, would depend upon whether the Applicant relapsed into drugs and reoffending.

17. I am of the view that this sub-paragraph (b) of paragraph 8.3(4) militates in favour of the allocation of a slight level of weight in favour of setting aside the non-revocation decision.

18. Sub-paragraph (c) of paragraph 8.3(4) requires me to examine the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.

19. I refer to my remarks above concerning the Applicant’s prior conduct.

20. There is, however, no direct evidence that the impact of the Applicant’s prior conduct has caused any detrimental effect on the wellbeing of any of the relevant children identified above. Notwithstanding this, I consider that the Applicant’s offending and subsequent periods of separation from his son cannot have been beneficial to the son. The same can be said in relation to the other children; acknowledging that, of course, they are not as reliant upon the Applicant in the same way a child is upon a parent.

21. It is not possible to find, with any certainty, how any future offending by the Applicant will impact the Applicant’s son or the other children. One does not even know the circumstances of any such future offending. Therefore, no finding about any future adverse impact can be reached at this stage.

22. Accordingly, this sub-paragraph (c) of paragraph 8.3(4), can at best, only attract neutral weight in favour of the Applicant having his visa status restored to him.

23. Sub-paragraph (d) of paragraph 8.3(4) requires me to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.

24. I observe that the Applicant is already separated from his son and the other children in real terms. I accept that the Applicant and his son face the prospect of being permanently separated, at least until the Applicant’s son is 18 years old. Whether the parents of the Applicant’s nieces and nephews would permit their children to visit the Applicant in New Zealand is a matter for them.

25. The reality is that were the Applicant to be removed from Australia, he would in all likelihood be able to communicate with his son at some point, as well as with his nieces and nephews, using ordinary telecommunication and electronic means. I accept that communications by telecommunication and electronic platforms are not the same thing as personal contact.

26. In these circumstances, it is appropriate that a moderate level of weight should be allocated to this sub-paragraph (d) of paragraph 8.3(4) in favour of a finding that it is in the best interests of the relevant children for the Applicant’s visa status to be restored to him.

27. Sub-paragraph (e) of paragraph 8.3(4) asks whether there are other persons who already fulfil a parental role in relation to the children.

28. With respect to the Applicant’s son, I observe that the child’s mother has already been removed from Australia, and that the child is in the care of the Queensland government. I understand the Applicant’s nieces and nephews to be parented by their respective guardians.

29. In these circumstances, this sub-paragraph (e) of paragraph 8.3(4), can at best, only attract neutral weight in favour of the Applicant having his visa status restored to him.

30. Sub-paragraph (f) of paragraph 8.3(4) requires me to consider any known views of the children, having regard to their age and maturity.

31. With respect to this sub-paragraph, the Applicant’s son is too young, and I only have the evidence of the Applicant and his sisters concerning the views of the relevant children. By all accounts, the Applicant is from a close-knit family of Samoan heritage, to whom family is very important; and I accept that each of the other children would want the Applicant not to be removed from Australia.

32. Sub-paragraph (g) of paragraph 8.3(4) compels the decision-maker to look for and analyse evidence that the children have been or are at risk of being subject to or exposed to family violence perpetrated by the non-citizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally.

33. The Respondent’s representative asserted that the evidence of drug use indicates that the Applicant neglected his son in utero. I agree.

34. Sub-paragraph (h) of paragraph 8.3(4) looks for evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

35. In the absence of direct evidence, I do not consider the application of this sub-paragraph is relevant to the Applicant in this case.

    Conclusion: Primary Consideration 3

36. I have had regard to the evidence and have sought, where I have thought appropriate and relevant, to apply my findings about the evidence towards the allocation of weight to each of the relevant sub-paragraphs to paragraph 8.3 of the Direction.

37. I am of the view, and I find that, the cumulative best interests of the relevant minor children in Australia weigh moderately in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

38. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[48] The Direction further states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[49]

    [48] Direction, [8.4(3)].

    [49] Ibid, [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

39. In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that “the Australian community expects non-citizens to obey Australian laws while in Australia”. The second proposition is that

    “where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”.

40. In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a:

    visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa.

41. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

42. I note, based on the principles in paragraph 5.2 of the Direction, that:

    (a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[50]

    (b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[51] and

    (c)The nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome adverse to the non-citizen.[52]

    [50] Ibid, [5.2(4)].

    [51] Ibid.

    [52] Ibid, [5.2(5)].

43. In his AFSIC, the Applicant acknowledges that the Australian community would expect him to forego the privilege of residing in Australia and correctly identifies that it is a matter for me, constituting the Tribunal, to determine how much weight should be given to that expectation.[53]

    [53] ASFIC at [28].

44. The Applicant submits that the following points are relevant to this consideration:[54]

    (a) [the Applicant] has ordinarily resided in Australia since he was one year old, but for a one year period between 2003 and 2004 (when he was 10 years old);

    (b) [the Applicant’s] only child lives in Australia;

    (c) [the Applicant] has strong family ties to Australia, with his parents, five siblings and 14 nieces and nephews all living in Australia;

    (d) [the Applicant] has strong social ties in Australia, having attended school in Australia, played sports for community sports teams and worked in Australia;

    (e) [the Applicant] did not commence any criminal offending until 24 years after he first began ordinarily residing in Australia (when he was 25 years old); and

    (f) [the Applicant’s] criminal offending has not included any violent offending or any offending relating to the distribution or supply for dangerous drugs within the community.

    [54] Ibid, [23].

45. I have had regard to each of these contentions.

46. The Respondent contends that the Australian community would expect that the Applicant should not hold a visa because of his past offending, in addition to the risk of further offending and infliction of harm

    Allocation of Weight to this Primary Consideration 4

47. I refer to my other observations above, namely that the Applicant has committed at least 31 offences over several years (and for which he has been sentenced to, and served, periods of imprisonment). I consider that this amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, I consider that by virtue of paragraph 8.4(1) of the Direction, the Australian community as a ‘norm’ would expect the Government to remove the Applicant from Australia.

48. The next question I must consider is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.

49. Other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.

50. Overall, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction:

    The nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    Conclusion: Primary Consideration 4

51. In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that this Primary Consideration weighs very strongly in favour of non-revocation.

    OTHER CONSIDERATIONS OF THE DIRECTION

1. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

   (a) International Non-Refoulement Obligations

2. Paragraph 9.1 of the Direction sets out that a decision-maker should weigh any non-refoulement obligations that Australia owed in respect of the Applicant against the Applicant’s criminal offending.

3. This consideration is not relevant to the Applicant in this matter.

   (b) Extent of Impediments if Removed

4. Paragraph 9.2 of the Direction directs a decision-maker to take into account

   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 any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

5. I will address each of the three main components of this Other Consideration in turn.

6. First, it is necessary to consider the Applicant’s age and state of health.[55]

   [55] Direction, [9.2(1)(a)].

7. As referred to above, the Applicant is 29 years of age and has a history of substance abuse.

8. Given all the circumstances, I accept the Applicant’s oral testimony that he has previously suffered from depression,[56] even though no formal diagnosis has been recorded (and no supporting documentation was provided).

   [56] Transcript at P-9 and P-10.

9. Notwithstanding his history of substance abuse, I consider that the Applicant’s physical abilities should allow him to obtain employment. He has demonstrated that he can work hard.

10. Second, it is necessary to consider whether there are any ‘substantial language or cultural barriers’’[57] to the Applicant returning to New Zealand.

    [57] Direction [9.2(1)(b)].

11. I do not consider that there are any such language or cultural barriers. As found by this Tribunal (differently constituted) in a previous case:

    New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. […].[58]

    [58] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].

12. Third, it is necessary to consider any social, medical and/or economic support available to the Applicant in New Zealand.

13. Here, I refer again to this Tribunal’s findings in Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301, wherein it was noted:

    New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[59]

    [59] Tera Euna [101].

14. As a citizen of New Zealand, I consider that the Applicant would be able to obtain social, medical and/or economic support treatment in the same way as any other citizen of New Zealand.

15. As I have indicated above, I observe that the Applicant’s parents have indicated to family members that they would return to New Zealand with the Applicant if he were removed from Australia.[60]

    [60] Transcript at P-42.

16. I consider that any difficulties the Applicant would face in re-establishing himself in New Zealand would be temporary.

17. In all the circumstances, I consider that this factor weighs only slightly in favour of revocation.

    (c) Impact on Victims

18. Paragraph 9.3(1) of the Direction states that:

    Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

19. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims.

20. I therefore do not attach any weight to this Other Consideration (c).

    (d) Links to the Australian community

21. Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors:

    (1)The strength, nature and duration of ties to Australia;[61] and

    (2)The impact on Australian business interests.[62]

    [61] Direction [9.4.1].

    [62] Direction [9.4.2].

    9.4.1. Strength, Nature and Duration of Ties

22. With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family’ where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia.

23. I accept that the Applicant has resided in Australia since he was one year old, with the exception of a one-year period when he was aged 10 to 11 years, and that he is entitled to greater weight under this consideration since he arrived at such a young age.

24. The Applicant understood that a non-revocation decision would result in his permanent exclusion from Australia. This is not lost on me as the decision-maker, as I understand the Applicant to have his son, parents, five siblings and 14 nieces and nephews here in Australia (as outlined above). I have also read and had regard to a statement provided by the Applicant’s uncle.[63]

    [63] Exhibit R1, 119.

25. The Tribunal heard oral evidence from the Applicant’s sisters; Leticia Va’a, Teresa Va’a and Jackie Va’a. Leticia told the Tribunal that she wants to assist the Applicant to get help.[64] She said that they have a close family and that she named her second child after the Applicant.[65] She described the Applicant as having a good relationship with each of her children.[66] Leticia told the Tribunal that she understood that her mother and her father, together with her younger sister Jackie (discussed below), would return to New Zealand if the Applicant was to be removed from Australia.[67] Leticia told the Tribunal that her father has a number of health issues and that she didn’t expect that he had long  to live.[68]

    [64] Transcript at P-41; she also provided a statement at Exhibit R1, 115.

    [65] Ibid, P-42.

    [66] Exhibit R1,115.

    [67] Transcript P-42 and P-43.

    [68] Ibid, P-44. This is also supported by a statement provided by the Applicant’s father dated 30 August 2021 and a letter from Dr Harsha Aluthge at Exhibit R1, 134-135.

26. Teresa Va’a told the Tribunal that the Applicant has a good relationship with her three-year-old son, who has autism.[69] She described her relationship with the Applicant as “really close” and remarked that it would be hard for her to travel and hard on her if the Applicant was to be removed from Australia.[70] Teresa told the Tribunal that she understood that her mother and her father would return to New Zealand if the Applicant was to be removed from Australia.[71] Teresa said that her parents leaving Australia would impact her as they provide support to both her and her son.[72]

    [69]Transcript at P-47.

    [70] Ibid; Exhibit R1, 112.

    [71] Transcript P-47.

    [72] Ibid.

27. Jackie Va’a told the Tribunal about the impact upon her which she foresaw, were the Applicant to be removed from Australia. She also confirmed in her evidence that her mother and her father are experiencing problems with their health.[73]

    [73] Ibid, P-50.

28. I have read and had regard to the statement provided by Max Va’a, the Applicant’s brother (dated 26 October 2020).[74]

    [74] Exhibit R1, 117.

29. I accept that the Applicant is from a close-knit family of Samoan heritage; and that the Applicant’s immediate family would be devastated by the Applicant being permanently excluded from Australia.

30. I accept that the Applicant has a history of study (leaving school in year 11)[75], friendship/companionship, sport, church and employment in Australia. The evidence establishes that that as a young person the Applicant was involved in rugby league and volleyball. Before the relationship with the mother of his child, I accept that the Applicant was previously in a relationship with a woman by the name of Aliki, and that relationship ended in late 2017. I have read and have regard to a letter dated 15 October 2020 from Pastor Moana Va, which confirms the Applicant’s previous involvement with the Richlands Samoan Church of God.[76]

    [75] I note however the statement from the Applicant’s parents dated 23 October 2020 states that the Applicant attended until Year 12.

    [76] Exhibit R1, 97.

31. I observe that the Applicant was previously employed for three and a half years by Glass Recovery Services (on two occasions) located in Coolaroo, Victoria, where he worked with his older brother Max.[77] I accept the Applicant’s evidence that this employer was involved in the commercial recycling industry, that he worked hard and never took a day off. I accept that the Applicant has previously also worked for two other companies carrying out forklift and other similar manual duties.

    [77] Statement of Max Va’a dated 26 October 2020, at Exhibit R1, 117-8.

32. Overall, I find that the Applicant’s ties to Australia weigh moderately in favour of revocation.

    9.4.2 Impact on Australian Business Interests

33. I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia, with particular reference to any impact his removal may have on ‘Australian business interests’. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can ‘generally only’ be allocated in this instance where a revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.

34. Therefore, this consideration is not relevant to the Applicant in this case.

    Weight allocable to Other Consideration 4: links to the Australian community

35. With reference to these Other Considerations, to the extent that any of them may weigh in favour of revocation, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of non-revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:

    (a)International non-refoulement obligations: not relevant;

    (b)Extent of impediments if removed: slight weight in favour of revocation;

    (c)Impact on victims: neutral; and

    (d)Links to the Australian community: moderate weight in favour of revocation.

    CONCLUSION

36. I find as follows:

    (a)  Primary Consideration 1: weighs very strongly in favour of non-revocation;

    (b)  Primary Consideration 2: not relevant;

    (c)   Primary Consideration 3: weighs moderately in favour of revocation;

    (d)  Primary Consideration 4: weighs strongly in favour of non-revocation; and

    (e)  The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweighs the weight that it has attributed to the Primary Considerations as stated above.

37. Consequently, I do not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

38. The Tribunal affirms the decision under review.

I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

..................[sdg]......................................................

Associate

Dated: 30 March 2022

Date of hearing:	17 February 2022
Counsel for the Applicant:	Joel McComber
Solicitors for the Applicant	Sentry Law
Advocate/Counsel for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore

EXHIBIT REGISTER

File No      2021/9753
Between     John Va’a (Applicant)

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)

Heard on    17 February 2022

Before       Senior Member P. Q. Wood

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF LODGEMENT
R1	Section 501G ‘G’ Documents	Respondent	21 December 2021
R2	Supplementary section 501G ‘G’ Documents	Respondent	8 February 2022