Waqa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Waqa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3791 (21 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6344
Re:Melikiseteki Tekani A'takirau Waqa

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date Decision: 21 October 2022
Date of Written Reasons: 9 November 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 July 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
...............................[SGD]......................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Regional Sponsor Migration Scheme Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction 90 – family / domestic violence – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 (2017) 250 FCR 548
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
FYBR v Minister for Home Affairs (2019) 272 FCR 454
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Contents
Introduction and Background
An important procedural aspect of the matter
legislative framework
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
Primary Consideration 1 – protection of the australian community
The nature and seriousness of the non-citizen’s conduct to date
Overview of the Applicant’s offending
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Summary of findings around recidivist risk
Paragraph 8.1.2(2)(c)
Conclusion: Primary Consideration 1
Primary Consideration 2: family violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: the best interests of minor children in australia
Identification of the relevant minor child/children
The parties’ respective contentions
The Applicant’s oral evidence
Application of factors in paragraph 8.3(4) of the Direction to the relevant child(ren)
The Applicant’s minor siblings
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: expectations of the australian community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1)Strength, nature, and duration of ties

Impact of non-revocation on the Applicant’s immediate family
Strength, nature and duration of ‘other ties’ – length of residence
Strength, nature and duration of ‘other ties’ – family and other social links
(2)Impact on Australian business interests

Weight allocable to Other Consideration (d): links to the Australia community
Findings: Other Considerations
Conclusion
Decision
Annexure A
Annexure B
Annexure C
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 November 2022
introduction and Background

Melikiseteki Tekani A’takirau Waqa (‘the Applicant’) is 29 years of age. He is a citizen of Fiji who first came to this country on 6 August 2010. He has only left Australia once for a period of less than three months since his arrival. The visa previously held by the Applicant was a ‘Regional Sponsor Migration Scheme visa’ (‘the visa’). This visa was mandatorily cancelled by the Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services[1] (‘the Respondent’) on 27 September 2021 (‘the cancellation decision’). The cancellation decision derived from the Applicant’s conviction for criminal offending sentenced on 19 August 2021.
[1] As was the Minister’s title at that time.
The Applicant was duly notified of the cancellation decision on 31 January 2022. He sought revocation of the cancellation decision on 13 February 2022. On 29 July 2022, a delegate of the Respondent decided, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not revoke the cancellation decision. There followed an application to this Tribunal on 5 August 2022, seeking a review of the refusal to revoke the cancellation decision made on 29 July 2022 (‘the non-revocation decision’).
The Hearing proceeded before me on 19 October 2022. The Hearing received both oral and written evidence. The sole witness who gave viva voce evidence was the Applicant. At the beginning of the Hearing, an agreement from both parties that the written material before the Tribunal had been adequately summarised in an Exhibit List provided to the parties prior to the Hearing.[2] Attached to these Reasons and marked Annexure A is the agreed Exhibit List of material before the Tribunal.
[2] Transcript, p 2, lines 20-37.
An important procedural aspect of the matter
There is a notable procedural aspect to this matter which I will mention now. The Hearing was originally due to be conducted before me on 11 and 12 October 2022. This Applicant is self-represented. In the course of conducting our usual pre-hearing checks with the parties, it emerged that the Applicant was desirous of filing additional material with the Tribunal but in so doing, he would have offended s 500(6J) of the Act.
As a means of affording this self-represented Applicant procedural fairness and in the absence of any objection from the Respondent, I vacated the originally listed Hearing dates of 11 and 12 October 2022 and re-listed the matter for Hearing on 19 and 20 October 2022. On 10 October 2022 I made certain Directions confirming the vacation of the hearing and the re-listing of the matter. A copy of those procedural Directions is attached to these Reasons and marked Annexure B.
The net effect of these Directions was to send the Hearing into, respectively, 82^nd and 83^rd days of the 84-day paradigm applicable to these matters by virtue of s 500(6L)(c) of the Act. The hearing concluded on 19 October, having only ran for one day. On 21 October, on the 84^th day, a short-form decision was published by this Tribunal to ensure its statutory obligation pursuant to s 500(6L)(c) of the Act was met. [3] Attached to these Reasons and marked Annexure C is a true and correct copy of that short-form decision. I now publish my detailed written reasons for that short-form decision.
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the Minister is satisfied:
i) that the person passes the character test (as defined by section 501); or
ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
‘…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…’[5]
[4] [2018] FCAFC 151.
[5] Ibid, para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, ‘substantial criminal record’. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
‘…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…’
There is little to cavil with the proposition (and finding) that the Applicant does not pass the character test. Indeed the Respondent is correct.[6] By virtue of his convictions that have resulted in imposition of head custodial terms exceeding two years, the Applicant has compiled a ‘substantial criminal record’. He does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[6] R1, p 5, para [21].
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[7]
[7] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
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.’[8]
[8] Direction 90, para [6]. See also Direction, para [4(1)] which provides that a, “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
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 (as the case may be). The principles are:
1Australia 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 frameworks, and will not cause or threaten harm to individuals or the Australia community.
2Non-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.
3The 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).
4Australia 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.
5Decision-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.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[9]
[9] Direction 90, para [8].
The Other Considerations which, where relevant, 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’[10]
[10] Ibid, para [9(1)].
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:
(1) In applying the considerations (both primary and other), information from independent and authoritative sources should be given appropriate weight;
(2) Primary considerations should generally be given greater weight than other considerations; and
(3) One or more primary considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind 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.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
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).
Overview of the Applicant’s offending

In sentencing terms, the Applicant’s criminal history runs from June 2015 to August 2021. It involves the commission of some 23 separate offences that were dealt with across six sentencing episodes that occurred at the central Queensland locations of the Biloela Magistrates Court and Rockhampton Magistrates Court. His offending was punished by virtually the full ambit of sentencing options available to a judicial sentencing officer comprising:
·The recording of a ‘no conviction’ notation on his record with an accompanying monetary fine;
·The recording of a conviction and the imposition for an order of probation, including orders for community service;
·The recording of a conviction and the imposition of a monetary fine;
·The recording of a conviction with an accompanying ‘not further punished’ notation on his record;
·The recording of a conviction with an accompanying order that he perform community service;
·The recording of a conviction and the imposition of an 18-month head custodial term;
·The imposition of a three-month head custodial term;
·Disqualification of his driving privileges for a period of six months;
·The imposition of a six-month head custodial term;
·The imposition of a custodial term of one day;
·The imposition of a custodial term of three days;
The above sentences give rise to the imposition of head custodial terms in the sum of 27 months and 4 days or, put another way, two years, three months and four days.
He has committed a broad range of offences comprising:
·24 June 2015: Common assault;[11]
[11] Pursuant to s 335 of the Criminal Code Act 1899 (Qld) (‘the Criminal Code’).
·15 December 2015: Assault of obstruct police officer;[12]
[12] Pursuant to s 790(1) of the Police Power and Responsibilities Act (Qld) 2000 (‘the PPRA’).
·15 December 2015: Commit public nuisance;[13]
[13] Pursuant to s 6(1) of the Summary Offences Act 2005 (Qld).
·15 December 2015: Contravene direction or requirement;[14]
[14] Pursuant to s 791(2) of the PPRA.
·22 February 2017: Failure to appear in accordance with bail undertaking;[15]
[15] Pursuant to s 33(1) of the Bail Act 1980 (Qld).
·22 February 2017: Common assault—domestic violence offence;[16]
[16] Pursuant to s 335 of the Criminal Code; and s 47(9) of the Justices Act 1886 (Qld).
·15 November 2017: breach of probation order;[17]
[17] Imposed for breach of the probation order originally imposed for the offending for which he was convicted in on 22 February 2017.
·24 April 2020: breach of bail condition;[18]
[18] Pursuant to s 29(1) of the Bail Act 1980 (Qld).
·24 April 2020: common assault in public place while adversely affected by intoxicating substance;[19]
[19] Pursuant to ss 335(1) and 335(2) of the Criminal Code.
·24 April 2020: common assault in public place while adversely affected by intoxicating substance;[20]
[20] Ibid.
·24 April 2020: common assault in public place while adversely affected by intoxicating substance;[21]
[21] Pursuant to ss 335(1) and 335(2) of the Criminal Code.
·24 April 2020: contravene direction or requirement;[22]
[22] Pursuant to s 791(2) of the PPRA.
·24 April 2020: burglary and commit indictable offence;[23]
[23] Pursuant to s 419(4) of the Criminal Code.
·24 April 2020: wilful damage;[24]
·24 April 2020: stealing;[25]
·24 April 2020: contravention of domestic violence order;[26]
·19 August 2021: assaults occasioning bodily harm;[27]
·19 August 2021: unlawful use of motor vehicles, aircraft or vessels;[28]
·19 August 2021: unlawful entry of vehicle for committing indictable offence; used/threatened violence;[29]
·19 August 2021: dangerous operation of a vehicle and adversely affected by an intoxicating substance;[30]
·19 August 2021: dangerous operation of a vehicle and adversely affected by an intoxicating substance;[31]
·19 August 2021: possess utensils or pipes etc for use;[32]
·19 August 2021: possessing dangerous drugs;[33]
[24] Pursuant to s 469(1) of the Criminal Code.
[25] Pursuant to s 398 of the Criminal Code.
[26] Pursuant to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld).
[27] Pursuant to s 339(1) of the Criminal Code.
[28] Pursuant to s 408A(1A) of the Criminal Code.
[29] Pursuant to ss 427(1) and 427(2)(b)(i) of the Criminal Code.
[30] Pursuant to ss 328A(1) and 328(2)(a) of the Criminal Code.
[31] Ibid
[32] Pursuant to s 10(2)(a) of the Drugs Misuse Act 1986 (Qld).
[33] Pursuant to s 9(1) of the Drugs Misuse Act 1986 (Qld).
Paragraph 8.1.1(1)(a)(i)
The Applicant has committed crimes of violence. There are respective convictions for assaults occasioning bodily harm (convicted on 19 August 2021), common assault in public while adversely effected by intoxicating liquor (convicted on 24 April 2020) and common assault simpliciter (convicted on 24 June 2015). These are plainly offences of violence and, as such, this paragraph provides that they are viewed very seriously by the Australian government and the Australian community. This paragraph therefore militates strongly in favour of a finding that the Applicant’s offending has been of a very serious nature.
Paragraph 8.1.1(1)(a)(ii)
The Applicant has at least two convictions for violent offending against a woman. The material contains reference to an incident that occurred on 1 December 2016 involving the Applicant committing very serious violent conduct towards a female victim.[34] He was convicted of an offence comprising common assault - Domestic Violence Offence at the Biloela Magistrates Court on 22 February 2017. The circumstances of that offending are truly violent.
[34] R2, pp 41-42.
The second conviction for violent offending against a woman arose from an incident on 21 July 2019. The circumstances of the incident involved the Applicant spraying a female victim with the contents of a fire extinguisher after she asked the Applicant to leave certain hotel premises after she observed him climbing through a window with a fire extinguisher in his hands.[35] He was convicted of an offence comprising common assault in public while adversely effect by intoxicating substance at the Rockhampton Magistrates Court on 24 April 2020. Once again, the Applicant’s conduct towards this female victim was, without question, truly violent.
[35] Ibid, pp 49-50.
This paragraph militates very strongly in favour of a finding that the Applicant’s violent conduct towards women has been of a very serious nature.
Paragraph 8.1.1(1)(a)(iii)
The victim has at least one conviction for an act of family violence against a woman. On 1 December 2016, the Applicant became extremely violent towards his partner. The material contains the following description of his conduct towards his then domestic partner:
‘The Defendant began to clench his fist and get Victim. The Defendant opened the door forcefully and the Victim stated to the Defendant he was being such a child. The Defendant got out of the car and walked away and came back. The Victim returned to the car and she locked the doors fearing that the Defendant would assault her. The Defendant put his head through the open front passenger window and he was reaching for the Victim head and got hold of the Victim’s hair. The Victim drove forward which ripped her hair and the Victim had to stop. The Victim was very scared and upset. As the vehicle stopped the Defendant got into the front passenger seat and was shaking and breathing heavily and he was loud and abusive to the Victim. They began to drive off. The Defendant was abusing the Victim about driving slow back to the main gate of the power station. On the junction to the power station from the look out the Defendant demanded to be driven home.’[36]
[Errors in original]
[36] R2, p 41.
This offending came before the Biloela Magistrates Court for sentencing on 22 February 2017. It was charged as common assault-domestic violence offence and the Applicant was duly convicted of this offence, with a conviction recorded and the imposition of an Order of Probation for a period of 15 months. I am satisfied that this act (and conviction) for family violence offending against this victim militates very strongly in favour of a finding that the Applicant’s offending has been of a very serious nature.
Paragraph 8.1.1(1)(b)(i)
There is no evidence – written or oral – before me indicating the commission of any offence in the realm contemplated by this paragraph. It is not relevant to the assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(ii)
The Applicant has at least two convictions for committing offences against government representatives or officials in the performance of their duties. On 15 November 2015 the Applicant refused to follow a lawful direction issued to him by the Police. The material records the following:
‘As a result of arresting the defendant in relation to charge one, Police have directed the defendant to, “Stop” as he was walking away from Police. Police warned the defendant he was obstructing Police and again directed the defendant to “Stop”, to which the defendant continued to walk away stating, “I don’t have to stop for you!” Police have had to run to the defendant to stop him and have placed him in handcuffs. The defendant was subsequently arrested for the involved offence and transported to the Rockhampton watch house.’[37]
[37] R2, p 34.
For this conduct the Applicant was charged with ‘assault or obstruct police officer’. For this offending the Applicant was convicted and fined the sum of $500.
Also on 15 November 2015, the Applicant contravened a lawful requirement put to him by the police. The material discloses the following:
‘As a result of arresting the defendant, Constable Kristen LALLEY has given the defendant a requirement to state his full name and address as he had committed an offence. The defendant refused and yelled aggressively at Police, “I don’t give a fuck just arrest me let’s go!” The defendant was warned he was committing an offence to which the defendant still refused. The defendant was subsequently arrested for the involved offence and transported to the Rockhampton watch house.’[38]
[38] Ibid.
For this conduct the Applicant was charged with ‘contravene direction or requirement’. For this offending, the Applicant was convicted and fine the sum of $300.
On 2 January 2020, the Applicant again contravened a direction or requirement issued to him by Police. The material discloses the following conduct:
‘That on the 2nd day of January 2020 at Biloela in the Magistrates Courts District of Rockhampton in the State of Queensland one Melikiseteki Tekani A fowler WAQA without reasonable excuse contravened a requirement given by a Police Officer namely [name redacted] under the Police Powers and Responsibilities Act 2000 namely you are required to report to a police officer at the stated police station or police establishment to enable a police officer to take or photograph all or any of your identifying particulars within 7 days after the issue of this notice…’[39]
[39] R2, p 78.
For this conduct the Applicant was charged with ‘contravene direction or requirement’. He was convicted of this charge and fined the sum of $150.
I am satisfied that the totality of the Applicant’s conduct captured by this paragraph is militative of a finding that the totality of his conduct has been of a serious nature, more likely, very serious.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘…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.’ Neither the Applicant or Respondent has nothing to say about this paragraph and, in those circumstances, I am content to conclude it is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
As best as I understood the material, there is nothing before me to suggest the Applicant has committed a crime while in immigration detention or in any of the other circumstances described in this paragraph relating to immigration detention. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(c)
In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[40] (2) acts of family violence;[41] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[42] As mentioned earlier, the Applicant does have convictions in the first two of these categories but not in the third.
[40]    Direction 90, para [8.1.1(1)(a)(ii)].
[41]    Ibid, para [8.1.1(1)(a)(iii)].
[42]    Ibid, para [8.1.1(1)(b)(i)].
Be that as it may, there is little to cavil with the proposition (and finding) that this Applicant has had very significant sentences imposed for his other offending. On 19 August 2021, he received a head custodial sentence of six months for conduct charged (as two offences) as ‘dangerous operation of a vehicle and adversely affected by an intoxicating substance’. On that day the Applicant also received a head custodial term of imprisonment of three months for conduct charged as: (1) unlawful entry of vehicle for committing indictable offence; used/threatened violence; and (2) unlawful use of motor vehicles, aircraft or vessels.
Also on 19 August 2021, the Applicant received his most significant head custodial term of imprisonment – comprising 18 months – for conduct charged as assaults occasioning bodily harm. It is well established that the imposition of a custodial term represents the last resort in the sentencing hierarchy. It logically follows that sentences involving the imposition of custodial time should be viewed as a reflection of the objective seriousness of the offences involved.[43] The totality of these custodial sentences amounts to 27 months of head custodial time. It can be safely found that those sentences are significant and are certainly significant.
[43] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].
I am satisfied that the sentences[44] imposed on this Applicant are very strongly militative of a finding that his finding has been, at the very least, serious and more likely very serious.
[44] That is those sentences not excluded by this paragraph.
Paragraph 8.1.1(1)(d)
This paragraph requires an examination of: (1) the frequency of a non-citizen’s offending; and (2) whether there is any discernible trend of increasing seriousness. First, this Applicant has an offending history that, in sentencing terms runs from June 2015 to August 2021 – a period of just over six years. During that six year period he has been convicted of 23 offences. This equates to the commission of, and conviction for, on average, almost four offences for each year of the offending history. I am therefore satisfied that his offending has been frequent.
Second, I am satisfied that his offending does demonstrate a trend of increasing seriousness. There is surely little that can be said against a finding that the conduct for which the Applicant was convicted and sentenced at the Rockhampton Magistrates Court on 19 August 2021 was a significantly more serious nature than that for which he was convicted in the first two (of a total of six) sentencing episodes.
Paragraph 8.1.1(1)(e)
This paragraph looks for any cumulative effect(s) resulting from the Applicant’s repeated offending. To my mind, the Applicant’s conduct is indicative of a range of cumulative effects. First, his offences of violence are surely indicative of a person who has not developed semblance of respect for the personal rights of others. His offences of violence against women in particular are indeed very serious and have been committed in the context of a concerted campaign in the community to control and moderate that sort of offending.
Second, his convictions for stealing, wilful damage and burglary point towards a failure to respect the property rights of others. People in the community have every right to possess and enjoy things they have worked hard to acquire. Offenders who fail to recognise that those things belong to the owners of those things demonstrate a severe lack of any understanding of how and why the victims of such offending have a right to use and enjoy those things.
Third, the Applicant has three convictions for, in essence, either contravening a lawful direction or otherwise directly obstructing Police officers in the course of their duty. This type of offending should be read in conjunction with his respective convictions for breaching a bail condition and an order for probation. Taken in total, this conduct is indicative of a person who has abjectly failed to develop any measure of respect for the lawful authority governing the Australian community back into which he wants to be re-admitted.
Fourth, the Applicant’s history is indicative of an offender who has failed to adequately or satisfactorily deal with his extant issues relating to the abuse of illicit drugs and alcohol. Much of his offending has been committed while under the adverse influence of either or both drugs and alcohol. There is no indication that these substance abuse issues are under any type of remedial management and control. While I will analyse the recidivist risk later in these reasons, I am satisfied that unresolved difficulties with illicit drug and/or alcohol abuse are and remain at the epicentre of this Applicant’s predisposition to offend. As such, these difficulties are a cumulative effect of his repeated offending.
Paragraph 8.1.1(1)(f)
This paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. This paragraph most commonly engaged when an applicant leaves from and returns to Australia and is thereby compelled to complete an incoming passenger card. There is no reference to an incorrectly completed incoming passenger card in the material nor is there any other evidence pointing to this Applicant providing false or misleading information to the department. It is not relevant to the instant determination.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. This Applicant’s unlawful conduct in Australia has not been the subject of any prior warning or sanction – that is, prior to the mandatory cancellation of his visa that occurred on 27 September 2021.
This paragraph relates to a formal warning about the Applicant’s migration status. It does not extend to warning that, no doubt, judicial sentencing officers would have given him about other consequences arising from the commission of further offences. This paragraph is therefore not relevant to the determination of this application and should be put to one side.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply the relevant paragraphs at paragraph 8.1.1(1) of the Direction to the evidence around the circumstances of the Applicant’s offending. Taking into account my findings in relation to each of those relevant paragraphs, I conclude (and find) that the totality of his unlawful conduct in Australia has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction 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 of it being be repeated may be unacceptable.

Paragraph 8.1.2(2) 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 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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is little or nothing to cavil with the proposition (and finding) that this Applicant’s offending has resulted in the infliction of significant harm to its victims. Were he to re-engage in any of his past criminal conduct, palpable harm would ensue to members to the Australian community. Were he again to offend in the realm of domestically violent conduct, there is no question that serious harm would be suffered by a victim of that conduct. Were he again to become involved in other violent conduct, similar serious harm would be occasioned to those victims as well.
Were he again to commit property offences in the realm of burglary, stealing and wilful damage, the victims of such conduct would incur material loss and damage. Were he again to allow himself to become adversely effected by illicit drugs and/or alcohol and then purport to assume control of a motor vehicle, then serious and potential fatal consequences could result for other road users. Were he again to refuse to respect lawful authority, be it in the form of a bail or probation order or by simply refusing the lawful and reasonable direction of the Police, the community’s resources would again be consumed by having to deal with this pointless and irresponsible conduct which is entirely unbecoming and unreasonable conduct for a person such as the Applicant who is 29 years of age.
I am therefore satisfied that were this Applicant to re-commit any of his past offences, there would result physical, psychological, economic and/or financial harm to the Australian community. It is not beyond the realms of possibility that such harm would be significant and could, quite conceivably, result in catastrophic harm to a future victim(s).
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
In his Personal Circumstances Form (‘PCF’) the Applicant was asked to identify factors giving rise to his offending history. He responded thus:
‘Every time I have gone down a bad path was when I wasn’t on medication, lost a loved one or started drowning my emotions with drugs & alcohol. But every time I have a good streak I have been getting the appropriate help I needed like; a mental health plan, AOD’s or mental health nurses & Doctors regular appointments, and mostly being on the right medication. Before I got arrested I wasn’t taking my priscribed med’s. I had turned to street drugs & alcohol to cope with the struggles of a recent break, the anniversary of the death of my role modle, Tradie (when I was an apprentice) & my Australian adopted father. Who I turned to for fatherly advice.’[45]
[Errors in original]
[45] G1, p 61.
In his PCF the Applicant mentioned the following courses or programs that eh says will help him avoid further offending: ‘AOD’s, Biloela Mental Health Plan, Psychiotrists & mental health appointments.’[46] [Errors in original]. His PCF also contained the question about his belief about his future recidivist risk to which he responded thus:
‘The only risk I believe that I could offend in the future is if I turned back to alcohol to numb; which is not going to happen because even tho I spent a short time in jail I have treated it like rehab and stayed away from jail drugs & alcohol which I was offered daily. I have learn’t my lesson & know for a fact if I can do it in jail I can do life easy on the outside without drugs & alcohol.’[47]
[Errors in the original]
[46] G1, p 61.
[47] Ibid.
In his Statement of Facts, Issues and Contentions (‘SFIC’) the Applicant referred to his recidivist risk in these terms:
‘…while being detained here in Brisbane Detention I have started a Do it program, Anger Management course, stress management course and for the first time ever yoga and strictly sticking to my medication. I’m not going to stand up there saying I’m ready to get out of here but if I could stay in here till my parole ends on the 13th of December this year I promise you that I’ll have all the courses complete including a regular visit to the AA online meetings I have been attending at least once a week.
…
…the majority of my crimes have been committed while being intoxicated by alcohol. Alcohol is my biggest issue second to Anger which I'm working on both while being detained at the Brisbane Detention Centre. Also while being in here I have quit smoking and if I can quit smoking in a high stress environment like this. And find God in my supposed to be darkest times in my life while in jail then I can do anything outside these walls with my family and friends who are all citizens of Australia.’[48]
[48] A1, p 4, para [1]; and p 5, para [2].
In his oral evidence before the Tribunal, the Applicant said the following during cross-examination:
·he agreed that the main reason behind his offending has derived from his problems with drugs and alcohol in the past;[49]
·he also agreed that he has had a significant problem with drugs and alcohol in the past and that he has abused those substances as a means of supressing his emotions;[50]
·he agreed that his difficulties with alcohol are greater than those he has with illicit drugs;[51] and
·he agreed that when he drinks too much alcohol he becomes both angry and violent.[52]
[49] Transcript, p 35, lines 32-36.
[50] Transcript, p 35, lines 35-39.
[51] Transcript, p 35, lines 45-46.
[52] Ibid, p 36, lines 1-3.
He also told the hearing that he commenced drinking alcohol back in Fiji when he was about 13 years old and that he was ‘finishing full bottles’ of alcohol (beer) by the age of 16.[53] He confirmed that upon arriving in Australia as a 17-year-old he kept drinking alcohol and realised that by the age of 18, he had developed a problem with alcohol. He confirmed that his drinking occurred ‘every weekend’[54] and that his consumption pattern involved the drinking of a full carton of 24 stubbies with spirits on top of that. By ‘weekend’ the applicant was referring to Friday, Saturday and Sunday nights and that on each of those days he would consume an entire carton of 24 stubbies plus spirits on top of that.[55] In terms of the usual amount of spirits he would drink on top of the beer, he said it was half a standard sized 700ml bottle of scotch whiskey.[56]
[53] Ibid, lines 5-11.
[54] Ibid, line 24.
[55] See generally, Transcript, p 36, lines 23-46; and p 37, lines 1-11.
[56] See generally, Transcript, p 37, lines 21-24.
The Applicant confirmed that he maintained this pattern of drinking until 2016 – that is, for about seven years – until he attained the age of 25. He was asked about what happened in 2016 that may have impacted on his pattern of drinking alcohol and he responded thus:
‘MR KYRANIS: In 2016 what happened to your drinking; did it get better or worse?
APPLICANT: Well, that’s when I had one of my first charges, went to court, yes, and I kind of went down for a bit. But, not really. Yes, it just stayed on a neutral level.
MR KYRANIS: So, even after 2016 your alcohol consumption stayed pretty frequent?
APPLICANT: Yes.
MR KYRANIS: And in the consumption that you’ve described, like, three times a week?
APPLICANT: Yes.
MR KYRANIS: A lot of beer, a lot of spirits?
APPLICANT: Yes.’[57]
[57] Transcript, p 37, lines 34-43.
The Applicant readily agreed that most, if not all, of his offending has been committed while he has been intoxicated by alcohol or under the influence of illicit drugs.[58] The Applicant then gave evidence that his pattern of alcohol consumption changed in June 2021 such that while not drinking every weekend, he was drinking at least once a month but that he was nevertheless ‘drinking heaps’:
[58] Ibid, lines 45-46.
‘MR KYRANIS: I just want to clear one thing up. So, from when you were 18 till when you were – sorry, I’ll start again. At the time of this most recent offending, the June 2021 episode?
APPLICANT: Yes.
MR KYRANIS: Were you drinking in the frequency that you just described? So, three times a week?
APPLICANT: Yes, not three times a week. Probably like once a month.
MR KYRANIS: Okay?
APPLICANT: But, yes, when I get to that drinking stage I was drinking heaps.
MR KYRANIS Okay. So, in about June 2021 you were drinking once a month?
APPLICANT: Yes.
MR KYRANIS But, on that one day it was a lot?
APPLICANT: Yes.
MR KYRANIS: How much alcohol were you drinking on that one day?
APPLICANT: I’m not sure.
MR KYRANIS: More than a carton and then some spirit?
APPLICANT: Yes.
MR KYRANIS: In relation to one of the incidents it says that you drank a whole bottle of Scotch?
APPLICANT: Yes.
MR KYRANIS: So, when did your alcohol change from the three days a week to the one day per month frequency?
APPLICANT: Yes, after 2016, around there. I started coming down a bit.
MR KYRANIS: It came down in terms of frequency but on the day that you were drinking it was more; wasn’t it?
APPLICANT: Yes, yes.’[59]
[59] ibid, p 38, lines 1-26.
The Applicant confirmed that he commenced smoking cannabis when he was aged 19 and that he was using it daily since that time and certainly until his most recent placement into criminal custody. He further confirmed that he started smoking ice ‘around 2018/2019’ but that he was not too sure about what date he commenced smoking ice.[60] He further confirmed that from 2018 onwards he was using ice approximately every second weekend and that he would consume the drug in ‘multiple session’.[61]
[60] Ibid, lines 28-38.
[61] Ibid, p 39, lines 10-21.
He further confirmed that he last consumed alcohol in June 2021 and that the last time he was moving freely within the Australian community he was consuming alcohol and taking drugs and that those two elements lead him to commit his most recent series of offences.[62] In terms of his future recidivist risk the Applicant was asked why he had not learnt any lesson about the extent to which his unregulated consumption of alcohol and drugs has pre-disposed him to very seriously offend. He responded thus:
‘MR KYRANIS: I think you agreed with me earlier that your offending has most, if not, all of your offences have been whilst you’ve been affected by drugs or alcohol?
APPLICANT: Yes.
MR KYRANIS: Why haven’t you learnt your lesson that if I drink too much, I become violent and I commit criminal offences? Why haven’t you learnt that after 2015 and then 2017 and then 2020?
APPLICANT: Well, because I look at my dad, like, he’s still drinking, still domestic violence behaviours and all that he’s still got a great job, you know, he’s out there at the power station working a good job, getting paid good. I didn’t think there was any problem with me going down that track.’[63]
[62] Ibid, lines 25-35.
[63] Ibid, lines 37-47.
(ii) Evidence of the Applicant’s rehabilitation achieved by the time of the Decision
With reference to rehabilitative treatment the Applicant agreed that he has commenced doing the ‘DO-IT’ program, anger management and stress management courses while in immigration detention, but that he has not finished those courses. He further confirmed that he has attended a drug and alcohol counselling during this time in immigration detention.[64] As best as I understood his oral evidence, it seems the Applicant’s state of rehabilitation is incomplete or otherwise, at best, a work in progress. This is what transpired between him and the representative of the Respondent during cross-examination:
‘MR KYRANIS: Do I take that to mean that presently that because you haven’t completed the courses you don’t think that you’re ready to go back into the Australian community?
APPLICANT: I don’t know, I think I’d be better more equipped if I do finish the courses.
MR KYRANIS: You’d be better equipped if you finished the courses so that means presently, because you haven’t finished the courses, that you’re not as equipped?
APPLICANT: I’ve got basics so I can still go off that.
MR KYRANIS: Do you think that if you were released into the Australian community, because you haven’t done or completed the courses that you’re doing now, that there’s a chance that you will reoffend?
APPLICANT: No. I’m not thinking of reoffending at all. I don’t want to.’[65]
[64] See generally, Transcript, p 40, lines 23-34.
[65] Transcript, p 41, lines 11-23.
He was also asked about his prospects of resisting the temptation of returning to abusing alcohol if returned to the community where alcohol will be more freely available to him. His evidence went no higher than to suggest that ‘…I think I’ll be alright…’ in this regard:
‘MR KYRANIS: What about drinking alcohol? Alcohol’s very easily available outside, you don’t think that there’s a chance that you’ll go back and have a celebratory drink, for example if you are released?
APPLICANT: No, with my AA meetings I think I’ll be all right.
SENIOR MEMBER: You think you’ll be all right or you know you’ll be all right; what do you think? You’ll give it a try, haven’t you, that’s what you’re saying?
APPLICANT: Yes, I’ll give it a try, yes. I know I’ll be all right with my AA meetings because it’s working in detention. I’ve been offered alcohol here and there.’[66]
[66] Ibid, lines 25-34.
Summary of findings around recidivist risk
There are four discernible factors that speak to the Applicant’s recidivist risk. First, and perhaps most significantly, is the state of his treatment and rehabilitation for the factors that have previously disposed him to committing very serious offences. On his own evidence, the Applicant has agreed that difficulties arising from his abuse of alcohol and/or illicit drugs have been at the front and centre of his offending. There is reference in his evidence about starting certain courses but not finishing them. He was squarely asked whether his non-completion of these courses could lead one to think that he was not yet ready for a return to the Australian community. he replied with ‘I don’t know, I think I’d be better, more equipped if I do finish the courses.’ Further, in terms of the state of his rehabilitation and his history of partly – completed rehabilitative courses, he said ‘I’ve got the basics so I can still go off that.’
I take no comfort from this evidence about the state of the Applicant’s rehabilitation. Having ‘the basics’ from partially completed courses does not make a person with a history of this Applicant’s offending a sufficiently safe proposition for a return to the Australian community. This concern is exacerbated by the reality that alcohol and illicit drugs will be must more freely available to him in the general community, were he returned to it. The highest his evidence went was that if returned to the community right now he says ‘…with my AA meetings I think I’ll be alright.’
The evidence is plain: this Applicant has had, and continues to have significant issues with alcohol and illicit drug abuse. He is barely at the start of any rehabilitative program or process with any duly qualified clinician who could tell us anything about (1) the state of his symptoms predisposing him to substance abuse; (2) whether those symptoms are under any sort of remedial management and control; and (3) whether, in prognostic terms over say, the next three-six months, the Applicant’s difficulties with substance abuse can be effectively treated such as to render him a sufficiently safe proposition for re-introduction to the Australian community.
The second factor is a by-product of the first. It relates to the Applicant’s difficulties with anger management and behavioural control in circumstances where he is confronted with a frustrating situation or where a person directly challenges the way he wants things to be. There is reference in the material to two instances where, under the influence of alcohol and/or illicit drugs, the Applicant ‘see’s red and loses it…’[67] and becomes very violent towards both male and female victims. Two examples of him ‘losing it’ comprise (1) his very serious domestically violent conduct towards his then de facto partner on 1 December 2016; and (2) on 13 June 2021 when he became very violent towards a male victim seated in their vehicle as a means of causing that victim to exit the vehicle so that the Applicant could drive away in that vehicle.
[67] R2, p 42.
This predisposition towards total corruption of his moral compass when under the influence of illicit drugs and/or alcohol is, to my mind, a very serious and significant element of the unresolved nature and treatment of the Applicant’s symptomatology. The Australian community should not tolerate the re-introduction of a person into that community with unresolved drug and/or alcohol issues which, in turn, predispose him to ‘losing it’ in such a serious and significant way.
The third factor relates to the Applicant’s claim that familial responsibility in the form of his son and broader family will somehow act as bulwarks against his future recidivist risk. The fatal difficulty with such contention is that such claimed protective factors did feature in the Applicant’s past and did absolutely nothing to prevent him from very seriously offending. As will be demonstrated later in these Reasons, the state of the Applicant’s relationship with his minor son is not suggestive of a parent who has any great or significant interest in the welfare of that child. I am not convinced by this argument generally nor am I convinced that on any specific basis, the Applicant will return to the life of his minor son and play any kind of parental role that could not be accepted as a factor militating against his recidivist risk. The contention must be rejected in its entirety.
Fourth, this Applicant’s offending does, to my mind, starkly demonstrate to two things: (1) he has failed to develop any measure of respect for the lawful authority governing the Australian community; and (2) he is not prepared to observe the requirements of such lawful authority as it specifically relates to him in the form of, for example, orders for probation, the payment of fines and the imposition of domestic violence orders all of which compel him to do or refrain from doing a certain thing or things. There is little or nothing in the evidence to convince me that this aspect of his behaviour and disposition will change were he returned to the Australian community.
In terms of an assessment of his recidivist risk, I am satisfied (and I find) that there remains an unacceptable risk that this Applicant will re-offend with consequential significance and even catastrophic harm being occasioned to victims of further unlawful conduct by him. His recidivist risk cannot be defined with any certainty or reliability given the state of the evidence. His rehabilitation remains a work in progress. Accordingly, the level of his recidivist risk today must be found to be no different to what it was at the time of his most recent removal from the Australian community.
Paragraph 8.1.2(2)(c)

The Direction also contains a reference to paragraph 8.1.2(2)(c). Out of an abundance of caution and for the sake of completeness, I will note, with reference this specific paragraph, that this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the, ‘revocation’ of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)I have found that were he to re-commit any of his past offences, there would result physical, psychological, economic and/or financial harm to the Australian community. It is not beyond the realms of possibility that such harm would be significant and could, quite conceivably, result in catastrophic harm to a future victim(s); and
(c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as being not different now to what it was at the time of his most recent removal from the Australian community. I have reached this finding by taking into account: (1) his claimed protective factors and how they have failed to curb his propensity to abuse alcohol and/or illicit drugs and to very seriously offend; and (2) the significantly incomplete state of his rehabilitation coupled with his failure to engage with any meaningful rehabilitative treatment such that the Tribunal can rely on some type of independent and clinical prognostic analysis of his symptoms to reliably support any different level of recidivist risk.
I make further reference to paragraph 8.1.2(1) of the Direction and, in particular, the notion of ‘unacceptable risk’ which involves a risk that the community should not be required to tolerate regardless of other considerations. Having regard to the potential consequences of this Applicant re-committing any of his offences and the unconvincing state of the evidence about the likelihood that he will do so if returned to the community, I am led to find that his offending has been so serious that any risk of its recurrence is indeed unacceptable.
My analysis of the material before me leads me to a finding that this Applicant represents an unacceptable recidivist risk and that Primary Consideration 1 thereby carries a very heavy level of weight against revocation of the mandatory cancellation of his visa.
primary consideration 2: family violence
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).
(2)This consideration is relevant in circumstances where:
a)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
b)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.
The initial exercise compelled by the abovementioned paragraph 8.2 of the Direction requires two questions to be addressed: (1) who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against those family members amounts to family violence? I will now address each question in turn.
Who are members of the Applicant’s family?
I refer again to the circumstances of the Applicant’s conduct perpetrated on 1 December 2016 that saw him charged and convicted for the offence of Common Assault – Domestic Violence Offence. The relevant Queensland Police Service Court Brief refers to the victim being in a de facto relationship with the Applicant ‘…for about 4 years, living together for about 3 years. The Victim and the Defendant (i.e the Applicant) have one child together…[name of child redacted]. The Victim and the Defendant (i.e the Applicant) are currently separated due to this incident.’[68] There is little or nothing to cavil with the proposition (and finding) that the victim of this conduct was a member of the Applicant’s family at the time he perpetrated it.
[68] R2, p 41.
I am mindful that the definition of family violence at paragraph 4(1) of the Direction makes specific reference to ‘a member of the person’s family’. Significantly, the Direction does not provide a definition for either ‘family’ or ‘family member’. However, there are definitions of these terms which assist in the determination of the meaning of those terms as they appear in the Direction.
The Acts Interpretation Act 1901 (Cth) (‘AIA’) is of relevance to the interpretation of the Direction. Section 46 of the AIA provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[69] Section 5G of the Act relevantly provides that the member of a person’s family is, ‘…taken to include […] (a) de facto partner of the person; …’.
[69] See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461 at para [22].
Section 4(AB) of the Family Law Act 1975 (Cth) (‘FLA’) provides as follows:
‘Definition of family violence etc.
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’[70]
[Bold in original]
[70] Note: this definition is verbatim the definition of ‘family violence’ appearing in Direction 90 at para [4(1)].
Section 4(1AB) of the FLA provides as follows:
‘For the purposes of:
…
(aa) section 4AB;
…
a person (the first person) is a member of the family of another person (the second person) if:
…
the first person is or has been married to, or in a de facto relationship with, the second person;…’
[Bold in original]
It is surely no coincidence that the definition of ‘family violence’ in the FLA is stated in identical terms to the definition of that term appearing at paragraph 4(1) of the Direction. While the Direction does not contain a definition of the term ‘family member’, the FLA certainly does. Applying the foregoing FLA provisions to the instant facts, I am of the view that for the purposes of the definition of ‘domestic violence’ in the FLA, the ‘first person’ (i.e., the victim of the Applicant’s respective assault occasioning bodily harm convictions) can be found to be a member of the family of the ‘second person’ (i.e. this Applicant) if the victim of those respective assault occasioning bodily harm convictions, ‘is or has been… in a de facto relationship with’ this Applicant. [My underlining]
Given the commonality of terminology in terms of how the FLA and Direction deal with the question of family violence, I am of the view (and I find) that the subject victim of the Applicant’s respective convictions for ‘Common Assault – Domestic Violence Offence’ can be found to be a member of the Applicant’s family for present purposes.
I therefore find that the victim of the Applicant’s convictions for ‘Common Assault – Domestic Violence Offence’ conduct committed on 1 December 2016, was a member of his family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.’[71] To my mind, therefore, the definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[71] Direction 90, para [4].
I have earlier described (by quoting directly from the Police document) the appalling circumstances of the Applicant’s truly violent conduct towards this victim. [72] I therefore of the view that this conduct was certainly conduct that was violent, threatening and that otherwise sought to coerce and control the victim who was a member of the Applicant’s family at that time. I am also satisfied that, as quoted in the Police narrative[73] the Victim was ‘very scared and upset’. Therefore, it can be safely found that the Applicant’s violent conduct caused the Victim/family member to be fearful.
[72] See para [30] of these reasons.
[73] Ibid.
I again refer to the above-described indicia of the Applicant’s domestically violent conduct committed on 1 December 2016. I am of the view (and I find) that pursuant to paragraph 8.2(2)(a) of the Direction, this Applicant has been both (1) found guilty of an offence and (2) has been convicted of an offence involving family violence. I therefore have no hesitation in finding that the Applicant’s conduct towards his then de facto spouse (and member of his family) in the subject incident constituted violent and threatening behaviour that coerced or controlled the victim and otherwise caused her the be fearful.
I am therefore satisfied that the Applicant’s conduct which occurred on 1 December 2016 which saw the Applicant convicted for ‘Common Assault – Domestic Violence Offence’ on 22 February 2017 constitutes family violence against the Victim for the purposes of the Direction.
Assessment of the seriousness of the Applicant’s family violence
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Sub-paragraph 8.2(3)(a) requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. While the Applicant’s criminal history contains a number of convictions for violent conduct towards victims, it would be inaccurate to find that he is a frequent offender in the realm of domestically violent conduct towards a family member. Given the relative dearth of repeated convictions for family violence conduct, it would be unsafe to attribute a descriptor of ‘frequent’ to this type of conduct. The result of that finding is, in turn, that it is difficult to ascertain any trend of increasing seriousness of such conduct perpetrated by this Applicant. This is because there is only the one conviction for such conduct in the Applicant’s criminal history.
Sub-paragraph 8.2(3)(b) requires me to consider the cumulative effect of repeated acts of family violence. While I have earlier analysed the cumulative effects of the totality of the Applicant’s conduct for the purposes of Primary Consideration 1, given the absence of repeated convictions for family violence conduct in this Applicant’s criminal history, it is both difficult and unsafe to attribute or identify any cumulative effects of any repeated acts of family violence from this Applicant’s criminal history.
Sub-paragraph 8.2(3)(c) requires me to consider the rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph requires three enquiries:
(a)First, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. It cannot be denied that the Applicant is both remorseful and regretful for his family violence conduct. In a statement read to the Tribunal at the close of the hearing, the Applicant said: ‘So remorseful I couldn’t bear the thought of what I had done’[74];
(b)Second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen understands the impact of their behaviour on the abused person. In his written statement, the Applicant said: ‘A year goes by and still without proper treatment to my now rock bottom mental health. I turned into the monster I feared I was turning into and I turned abusive towards the mother of my child [Ms L]. You won’t find this in the police statement cause I’ve searched through it but. After I done this heinous act of hurting the one I was supposed to be protecting and the then love of my life [Ms L] she was just going to come in the house and talk about it exactly like my mom would with my father.’[75]
(c)Third, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a non-citizen to address the factors which contributed to their family violence conduct. In his abovementioned closing oral submission, the Applicant made reference to the substance abuse issues that had predisposed him to offend and said the following: ‘I can proudly say that AA online meetings and classes like stress management, anger management, drug and alcohol DO-IT programs I have completed in detention have taught me a lot about my addiction and I know that I can abstain from alcohol and other dangerous drugs like methamphetamine when faced with issues in my life and build a good support system to help me cope through tough times.’[76]
[74] Transcript, p 55, lines 4-5.
[75] A1, p 2, para [7].
[76] Transcript, p 55, lines 7-13.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. The material contains reference to a duly made Domestic Violence Order.[77] This material specifically comprises a Temporary Protection Order made on 8 December 2021[78] and a variation of that order also made on 12 January 2022[79]. These orders are accompanied by the usual explanatory document which, inter alia, which warns the respondent (i.e the Applicant) along these lines:
‘CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period.’[80]
[77] R2, pp 12-23; note: this order was made against the Applicant in respect of another victim – see Transcript, p 30, lines 43-47; and p 31, line 14.
[78] Ibid, p 12.
[79] Ibid, p 18.
[80] R2, p 23.
The difficulty with this warning for present purposes is a temporal one. That is, the Applicant committed his family violence offending on 1 December 2016, but both the Temporary and Variation Orders, of course, post-date that conduct. I am not able to find anywhere in the material any document pre-dating 1 December 2016 warning the Applicant about the consequences of further domestically violent conduct. Therefore, this sub-paragraph 8.2(3)(d) does not speak to the level of seriousness of the Applicant’s domestically violent conduct.
Conclusion: Primary Consideration 2
Having regard to the weight I have allocated to the various components of paragraph 8.2(3)(a)–(d) (inclusive), I am of the view (and I find) that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 3: the best interests of minor children in australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
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 the relevant minor child/children
In his PCF the Applicant nominates four minor children in Australia with whom he says he is connected. Three of those minor children have [‘Ms TB’] as their mother. The fourth child born in January 2015 is the child of the abovementioned victim of the Applicant’s domestically violent conduct on 1 December 2016. I will refer to her as [‘Ms L’]. At the commencement of the hearing, I sought to clarify whether I was to take into account all four of the minor children listed in the Applicant’s PCF or whether I was only to take into account the biological child born to the Applicant and Ms L in January 2015. The following exchange transpired between me and the Applicant at the hearing:
‘MR KYRANIS: When did you commence a relationship with [Ms TB]?
APPLICANT: Yes, that was a while ago now. I’m not too sure when. But, I just found out the other day we’re no longer together. Yes, I just found out she’s blocked me on Facebook and all that. So, the relationship is out of question now. We’re no longer together.
MR KYRANIS: So, the relationship between you and her [i.e Ms TB] has ended?
APPLICANT: Yes, yes.
MY KRYRANIS: And I take it if that relationship’s ended then you wouldn’t be asking the tribunal to consider the best interests of her children in its consideration of this application?
APPLICANT: No.
SENIOR MEMBER: So, I don’t look at any connection that you may have with [Ms TB]’s three children?
APPLICANT: No.
SENIOR MEMBER: That’s right, isn’t it?
APPLICANT: Yes.
SENIOR MEMBER We’re only focusing on the one child then?
APPLICANT: Yes.
SENIOR MEMBER: Okay, thank you.’[81]
[81] Transcript, p 9, lines 7-26.
The parties’ respective contentions

With reference to the abovementioned sub-paragraph (b) in paragraph [140], the Applicant resided in Australia since 2010, when he was 16-17 years of age. He has recently turned 29 years of age. His PCF indicates that during his time in Australia, he has engaged in remunerative employment in the areas of ‘deli and produce’ with Woolworths, ‘apprentice fitter/turner, labourer, yardsman, qualified fitter and turner’.[101] Also in his PCF he refers to his community involvement involving ‘filled and bangs for old peoples home in Biloela for the floods. Played for both union & league rugby teams in Biloela. Fiji day setup in Rockhampton like cooking and prepping Kave ceremony. Fiji day @ my dad’s house.’[102] He has fathered at least one infant child in Australia and has, to an extent, assumed a level of parental responsibility for that child. His participation in and contribution to the Australian community cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
[101] G1, p 62.
[102] Ibid, p 63.
With reference to the abovementioned sub-paragraph (c) at paragraph [140], I repeat that the Applicant resided in Australia since the beginning of 2010 when he was aged 16-17 years. He will turn 30 in 2023. He has spent something like a third of his life here. This means that the Australian community has a marginally higher than usual tolerance of criminal, or other serious conduct by the Applicant.
In relation to the abovementioned sub-paragraph (d) at paragraph [140], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by him re-offending and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that this Applicant’s unlawful conduct in this country and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
Having regard to the discussion around the abovementioned sub-paragraphs (a)–(d) (inclusive) referenced in paragraph [140], I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by him. Because of: (1) his breaches of the community’s expectations; and (2) his very serious domestic violence offending which involved violent offending against a woman, plus his crimes committed against government officials in the discharge of their duties,, I am of the view that the community expects the government can and should cancel his visa.[103]
[103] Direction 90, para [5.2(3)].
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
other considerations
It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.
Other Consideration (a): International non-refoulement obligations
The Applicant does not make any contention to the effect that a removal to Fiji will result in a breach of Australia’s non-refoulement obligations. The Respondent concurs with this observation.[104] This Other Consideration (a) is not relevant.
[104] R1, p 18, para [74].
Other Consideration (b): Extent of impediments if removed
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.
The Applicant’s written material and oral evidence
In his PCF the Applicant was asked about impediments to a return to Fiji, in response to the question ‘Do you have any diagnosed medical or psychological conditions?’, the Applicant ticked the ‘yes’ box. He said that he was suffering from ‘manic depression & anxiety. I’m on medication that can’t be provided in Fiji. Counsellors.’ The PCF also refers to the following regime of medication:
‘Name of medication            Condition(s) prescribed for
Seroquel  Manic depression & anxiety
En-depth  sleep Epnia [sic]’[105]
[105] G1, p 63.
The PCF is silent about naming any doctor/health professional/counsellor who is providing any identified form of treatment to the Applicant.
In his written statement[106] the Applicant talks about his mental health symptomatology and how those symptoms are the butt of stigma in Pacific Island culture:
‘My mom like most Fijian moms thinks mental health disorder medications are not for us “pacific islanders” which is a big stigma with the Pacific island races. Hence why she never gave me the medication prescribed to me by the doctors at Biloela hospital that night of my first attempted suicide. Yes, I spent majority of my younger years in Fiji and “visited” there in 2016-2017 for 3 months but let it be noted that when I returned to Australia I was malnourished and had lost 40+ kilos of weight, having left Australia for Fiji at 140+kilos and returning to Australia at 96 kilos.’[107]
[106] Exhibit A1.
[107] A1, p 2-3, para [8].
During the closing phase of the Hearing, I took the Applicant to this particular Other Consideration (b) and he agreed that it will be necessary for him to find employment in Fiji, but that this will not comprise an impossible impediment for him because of his qualifications as a fitter and turner. He also seemed to agree that whatever impediments that he would face upon a return to Fiji would not be impossible for him to overcome.[108]
[108] Transcript, p 73, lines 42-47; p 74, lines 1-16.
Sub-paragraph 9.2(1)(a): although the Applicant is relatively young, it can be accepted that he is experiencing certain mental health symptoms. As mentioned earlier in these Reasons it does not appear that those symptoms are under any kind of remedial management and control – in clinical terms. He has a diagnosis of manic depression and he is taking prescribed medication for it. The Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report for Fiji is contained in the material. With specific reference to the provision of mental health services in Fiji, the DFAT report says the following:
‘2.13 The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and Fiji might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
2.14 Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the DFAT Country Information Report FIJI May 2022 8 wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.’[109]
[109] R2, pp 89-99.
As is indicated in the abovementioned portion of the DFAT report, the level of mental health care available to the Applicant in Fiji is not necessarily on a par with that of Australia. But that is not to say the Applicant will be entirely deprived of publicly available mental healthcare support for his symptoms. It is difficult to accept that he will not be able to source his currently-taken medications in Fiji. As best as I understood the evidence, the Applicant is not suffering from any physical malady such as to now present as any significant impediment to his return to Fiji. I am not of the view that the Applicant’s age and presently described state of mental and physical health represents any significant or insurmountable impediment to his return and resettlement in Fiji.
Sub-paragraph 9.2(1)(b): the Applicant spent the first 17 years of his life in Fiji. He is currently 29 years of age which means he has spent almost 60% of his life in Fiji. He has also returned to Fiji for approximately three months during the period of December 2016 to February 2017.[110] In his material he speaks of a palpable pride and recognition of Fijian culture. There is little to suggest he will experience any substantial language of cultural barriers if removed to Fiji.
[110] G1, p 74.
Sub-paragraph 9.2(1)(c): the initial observation is that the Applicant will have the same level of access to social, medical and/or economic support in Fiji as is available to other citizens of that country. First, with reference to social support available to him in Fiji, the material discloses that he has certain aunts and an uncle with whom he appears to have a relatively close relationship, some of whom have provided supportive statements. The material contains reference to respective statements from the Applicant’s aunt and uncle who both reside in Fiji.[111] There is also a statement from another aunt who resides in American Samoa.[112] The Applicant seems well known to those people and, with particular reference to the aunt and uncle residing in Fiji, there is no suggestion that they will not offer him some kind of social support during the process of him resettling in Fiji.
[111] See exhibits A11 and A12.
[112] See exhibit A9.
In terms of medical support, the DFAT country information report relevantly provides as follows:
‘2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
2.12 Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.’[113]
[113] R2, p 98.
With reference to economic support, the DFAT country information report notes that Fiji’s official unemployment rate in 2020 was 4.8%.[114] The report also provides that during times of high unemployment, as occurred during the COVID-19 pandemic, people in Fiji move back to traditional villages and participate in subsistence living communities.[115] The Applicant has a not-insignificant history of engagement in remunerative employment in Australia. He is a duly qualified fitter and turner and has worked in that trade in Australia.[116] There is little to cavil with the suggestion that he would not be able to sustain himself from income derived by his working as a fitter and turner in Fiji.
[114] Ibid, p 99, para [2.21].
[115] Ibid, p 100, para [2.23].
[116] G1, p 62.
While the Applicant may face some social, medical and/or economic impediments upon a return to Fiji, I am not of the view that any hardship that would result therefrom would be insurmountable.
Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it confers only a moderate amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 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.
There is no evidence adduced by the Respondent about any impact the Applicant’s continued presence in Australia would have on any of his victims. In the absence of such evidence, it would be unsafe to speculate about the extent of any impact this Applicant’s offending and his continued presence has had, or would have on any of its victims.
I am mindful that I must have regard to evidence from any victim who speaks favourably about the Applicant remaining in Australia. As noted by Justice Kerr J in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[117]:
‘[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.’[118]
[117] [2021] FCA 1235.
[118] Ibid, paras [57]–[59].
My understanding of the evidence around [Ms L] is that while she does not purport to exclude or otherwise impede the Applicant’s access to [Child T] she is not dependant on the Applicant for the care of that child. As will be recalled, she has recently re-located to Hervey Bay with [Child T] and has re-established her life in that area. She has found employment there and she has support from her immediate family with the care of [Child T] from members from her immediate family. There is no suggestion that [Ms L] is militating for the Applicant to stay here because he is fundamental to her capacity to properly parent [Child T]. Accordingly, the principle in PGDX is not engaged by the instant facts.
The cautious approach is to not allocate weight to this Other Consideration (c) against the Applicant. I respectfully concur with the contention of the Respondent who suggests this consideration is not relevant.[119]
[119] R1, p 20, para [82].
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will now consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, ‘immediate family members’ 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 assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
I am first required to identify the Applicant immediate family in Australia. In his PCF he speaks of having the following immediate family members in Australia:
·father;
·mother;
·three sisters[120]; and
·brother[121];
[120] One of whom is a minor and whose interests I took into account during my discussion around Primary Consideration 3.
[121] This brother is also a minor and I took his interests into account during my discussion around Primary Consideration 3.
The relevant family members in Australia for the purposes of this Other Consideration (d) comprise the Applicant’s parents and, of his three sisters, the two that are adults. The Applicant does not appear to have a strong relationship with his father who has not provided any supportive statement to this Hearing. However, there are respective statements from the Applicant’s mother and from his two adult sisters. In her statement, he implores the Tribunal as follows: ‘…please don’t take my son away from us, as we are his only close family that are all living here as Australia citizen…’[122]. The Applicant mother did not give any evidence at the Hearing and her evidence was not the subject of any testing in cross-examination.
[122] A10, p 1.
There are also respective statements from his adult sisters. The first, Leona, regards the Applicant has her ‘brother and my protector’[123]. She adds that the Applicant ‘…supports our family in ways words could not explain and stepped up when our father let us down the most.’[124] The Applicant’s other adult sister, Alumita, says that ‘I’ve always been close with him growing up, and I can say that he has always lead a positive lifestyle’[125]. Neither of these sisters gave oral evidence at the Hearing and their evidence was not the subject of any testing in cross-examination.
[123] G1, p 70.
[124] Ibid.
[125] Ibid, p 71.
I am satisfied that each of the Applicant’s mother and two adult sisters would be adversely impacted by his removal to Fiji. I am therefore of the view that this component of Other Consideration (d) attracts moderate weight in favour of revocation. I predicate the allocation of this weight on the basis that these immediate family members are Australian citizens, Australian permanent and/or people who have a right to remain in Australia indefinitely.
Strength, nature and duration of ‘other ties’ – length of residence
I will now look at the two necessary elements referable to the extent of the Applicant’s ‘other ties’ to Australia. The first element involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, they came to Australia in 2010 as a 16 year old. Apart from spending three months in Fiji (December 2016-February 2017) he has not spent any other time away from Australia. He has spent about 40% of his life in this country.
There are two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those directs me to allocate less weight if the Applicant began offending soon after arriving here. As mentioned, the Applicant came here in 2010. He committed his first offence in Australia in May 2015 and was convicted for it in June 2015. This initial offending therefore occurred some five years after he arrived here. Such a period of five years post-arrival cannot be construed as offending that occurred ‘soon after arriving in Australia’. The first of these two tempering sub-elements should be put to one side and rendered neutral.

The second tempering sub-element requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. I have earlier found that the Applicant has a not-insignificant history of remunerative employment in Australia. His PCF confirms a steady history of employment in this country from 2011 onwards, which included the obtaining of trade qualifications as a fitter and turner. His participation in the Australian workforce will have yielded a contribution to the Australian community in the form of taxation he would have paid on his earnings. He is also responsible for a level of contribution to the community via his support for the elderly during a flood crisis, his participation in local rugby union and league competitions and his involvement in Fijian cultural events in his local area.
Thus, while I have put the first tempering sub-element to one side, I am of the view that the second one can be applied in the Applicant’s favour to attract a moderate level of weight to this Other Consideration (d) for the purposes of revoking the mandatory cancellation of his visa.
Strength, nature and duration of ‘other ties’ – family and other social links
As best as I understood the material (specifically the Applicant’s PCF) there is no reference to any other family members who reside in Australia in the form of in-laws, cousins, grandparents, uncles/aunts.[126] However, the material contains letters of support from other people who are known to the Applicant and who could thus comprise ‘other ties’ he may have to Australia. They comprise:
·Mr Andrew Gee Kee, who describes himself as a friend of the Applicant. He regards the Applicant as ‘…a kind person, sure sometimes he has a temper but he generally cares about everyone and everything.’[127] He adds ‘Please don’t send my mate…back to Fiji to never return. I know he will do the right thing.’[128];
·Ms Jesse Pearce, has been ‘close friends with [the Applicant] since 2012 back in high school…’[129]. she says ‘I couldn’t have had a better friend for myself over the years, he has had my back through thick and thin.’[130] The concluding part of her statement says ‘I beg this of you now, please let [the Applicant] stay in Australia and not deport him to Fiji.’[131]
·Mr David Pearce, regard the Applicant as ‘…a friend of my family.’[132] He has maintained contact with the Applicant after spending school years with him. He regards the Applicant ‘…as an honest person, he is always polite and respective [sic] of authority.’[133]
·Mr Clayton Evans, has also provided a written statement.[134] He says the Applicant is ‘…a good person. He has a strong sense of duty, which he applies to his job, family and community.’[135] He regards the Applicant as ‘…a great person and an excellent friend and an amazing father, brother and son.’[136]
·Ms Pauline Bunn, has know the Applicant for more than five years. She is the partner of the abovementioned Mr Clayton Evans. She says that she and her partner ‘have become very close to [the Applicant] and have on many occasions…had him attend dinners and has also stay [sic] the night and in this time have found him a very pleasant and well behaved indervidual [sic] to spend time with.’[137]
·Mr Jason Hibble, has known the Applicant for about six years. He says that during the time he has known the Applicant ‘…I have experienced an individual who is hard working and shows leadership and also a team member and carries themselves in a polite and respectful manner.’[138]
·Mr Ryan Davy, has personally known the Applicant for ‘…the past 7 years.’[139] His statement records that ‘In my time knowing [the Applicant] we played rugby union together. he [sic] was a leader on and off the field and widely respected in the community also having a huge hart [sic] and high family morels [sic].’[140]
·Mr Luke Pearce, has ‘personally known’ the Applicant for 12 years and says that he has ‘..grown to have him as a close friend in recent years.’[141] During the time he has known the Applicant, the Applicant has ‘…demonstrated a great work ethic, a strong sense of loyalty to his family and friends, the ability to carry himself well and in a polite and respectful manner, and above all he is a fantastic Father to his son.’[142]
[126] R1, p 60.
[127] G1, p 72.
[128] Ibid.
[129] Ibid, p 73.
[130] Ibid.
[131] Ibid.
[132] A3.
[133] Ibid.
[134] Ibid.
[135] Ibid.
[136] Ibid.
[137] A3.
[138] Ibid.
[139] ibid.
[140] Ibid.
[141] Ibid.
[142] Ibid.
I approach the evidence in the abovementioned dot-pointed statements with some degree of caution because none of the deponents gave oral evidence at the Hearing and, therefore, none of their evidence was tested in cross-examination. That said, I am open to affording a moderate level of weight to the evidence of these ‘other ties’ the Applicant has in Australia who would be adversely impact by his removal. The level of weight I have allocated to these ‘other ties’ is predicated on the basis that these people are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
(2) Impact on Australian business interests
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’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australia community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant and is rendered neutral. Overall, the Applicant’s links to the Australian community carry a moderate level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: is not relevant;
(b)extent of impediments if removed: carries a moderate level of weight in favour of revocation;
(c)impact on victims: is not relevant; and
(d)links to the Australian community: carries a moderate level of weight in favour of revocation.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs very heavily against revocation;
·Primary Consideration 2: weighs heavily against revocation;
·Primary Consideration 3: carries a moderate weight in favour of revocation;
·Primary Consideration 4: weighs very heavily against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 4 convincingly and determinatively outweigh the respective weights I have allocated to Primary Consideration 3 and Other Considerations (b) and (d);
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore does not favour revocation of the delegate’s decision made on 27 September 2021 which cancelled the Applicant’s visa.
Consequently, I find that there is not ‘another reason’ why the Respondent’s decision of 29 July 2022 should be revoked.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 July 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 187 (one-hundred-and-eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.........................[SGD].................................
Associate
Dated: 10 November 2022

Date of hearing:
19 October 2022

Representation for the Applicant:
Self-represented

Solicitor for the Respondent: Jake Kyranis (Senior Associate)
Sparke Helmore Lawyers
Annexure A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1-G20; paged 1-106)

Various

30 Aug 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-22)

28 Sep 2022

28 Sep 2022

R2

Respondent Tender Bundle (1-3, paged 1-117)

Various

28 Sep 2022

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1-5)

-

6 Oct 2022

A2

Combined Clinical Records (Paged 1-138)

Various

28 Sep 2022

A3

Character Reference Forms

Various

23 Sep 2022

A4

Screenshots of conversation with [Ms L] (paged 1-20)

-

6 Oct 2022

A5

Screenshot evidence of connection with son (paged 1-34)

-

6 Oct 2022

A6

Evidence of Brother [Mr J] (paged 1-2)

-

6 Oct 2022

A7

Evidence of [Ms K] conversation (paged 1-3)

-

6 Oct 2022

A8

Character reference of David Holden

6 Apr 2022

6 Oct 2022

A9

Character Reference of Naomi Reece

13 Oct 2022

14 Oct 2022

A10

Character Reference of Mereani Ledau Waqa

10 Oct 2022

14 Oct 2022

A11

Character Reference of Sofaia Lesivou Gavidi-Reece

14 Oct 2022

14 Oct 2022

A12

Character Reference of Joseph Tuikese Reece

13 Oct 2022

14 Oct 2022

Annexure B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G20; paged 1-106)	Various	30 Aug 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-22)	28 Sep 2022	28 Sep 2022
R2	Respondent Tender Bundle (1-3, paged 1-117)	Various	28 Sep 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-5)	-	6 Oct 2022
A2	Combined Clinical Records (Paged 1-138)	Various	28 Sep 2022
A3	Character Reference Forms	Various	23 Sep 2022
A4	Screenshots of conversation with [Ms L] (paged 1-20)	-	6 Oct 2022
A5	Screenshot evidence of connection with son (paged 1-34)	-	6 Oct 2022
A6	Evidence of Brother [Mr J] (paged 1-2)	-	6 Oct 2022
A7	Evidence of [Ms K] conversation (paged 1-3)	-	6 Oct 2022
A8	Character reference of David Holden	6 Apr 2022	6 Oct 2022
A9	Character Reference of Naomi Reece	13 Oct 2022	14 Oct 2022
A10	Character Reference of Mereani Ledau Waqa	10 Oct 2022	14 Oct 2022
A11	Character Reference of Sofaia Lesivou Gavidi-Reece	14 Oct 2022	14 Oct 2022
A12	Character Reference of Joseph Tuikese Reece	13 Oct 2022	14 Oct 2022

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/6344

General Division )
Re: Melikiseteki Tekani A'takirau Waqa
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION

TRIBUNAL: Senior Member Theodore Tavoularis

DATE: 10 October 2022

PLACE: Brisbane
The Tribunal DIRECTS that:
1.The currently-listed Hearing dates comprising 11 and 12 October 2022 be vacated;
2.The Hearing of this matter be re-listed for 19 and 20 October 2022, commencing at 10:00AM (AEST);
3.That, on or before 11:59PM on 14 October 2022, the Applicant be at liberty to file and serve any further documents upon which he intends to rely at the adjourned hearing of this matter; and
4.The adjourned Hearing of this matter proceed on an in-person basis.

……….………[SGD]………………….
Senior Member Theodore Tavoularis
NOTATIONS:
A.The Tribunal NOTES that the two-day rule contained in sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth) means the Tribunal can only have regard to information presented orally in support of the Applicant's case at the hearing of this matter if that information was set out in a written document given to the Tribunal and to the Respondent on or before 14 October 2022.
B.The Tribunal will use its best endeavours to publish its decision in this application by no later than 2pm on the date of publication. For the purposes of this Direction, “2:00pm” shall mean 2:00pm Australian Eastern Standard Time (AEST).

C.If, on the proposed date of publication, the Applicant is being held in immigration detention, the Tribunal will use its best endeavours to provide 24 hours’ notice to the Respondent’s representative of its intention to publish its decision in this matter.

Annexure C
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/6344

General Division )
Re: Melikiseteki Tekani A'takirau Waqa
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   21 October 2022
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 July 2022 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

...........................[SGD]..........................
Senior Member Theodore Tavoularis

[2022] AATA 3791

21 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	19 October 2022
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Jake Kyranis (Senior Associate) Sparke Helmore Lawyers

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/6344
General Division	)

TRIBUNAL:	Senior Member Theodore Tavoularis
DATE:	10 October 2022
PLACE:	Brisbane