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

Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2059 (2 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2403
Re:Michael Wilson
APPLICANT

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

DECISION
Tribunal: Member R West
Date: 2 July 2021
Place: Melbourne

The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct –whether conduct constituted family violence - best interests of a minor child – expectations of the Australian community – extent of impediments if removed - links to the Australian community – other considerations – decision affirmed
Legislation
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Steve v Minister for Immigration and Border Protection [2018] FCA 311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R West
2 July 2021
INTRODUCTION

This matter concerns an application for the review of the decision of a delegate of the Respondent not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the mandatory cancellation of the Applicant’s Spouse (Resident) (Subclass 100) visa under s 501(3A) of the Act.
BACKGROUND
The Applicant was born in Fiji. He first arrived in Australia on 25 February 2006 as the holder of a Class UF Subclass 309 (Partner (Provisional)) visa.
On 4 February 2009, the Applicant was granted a Spouse (Resident) visa (Subclass 100) visa (Visa) on the basis of his marriage to Ms F, an Australian citizen.
After his arrival in Australia the Applicant was convicted of a number of criminal offences, commencing in February 2008.[1]
[1] G3 at p 29-32.
On 1 December 2009, the Applicant was convicted of Aggravated burglary - person present, Assault police and Resist police (three counts) in the Magistrates Court of Victoria at Dandenong and sentenced to an aggregate term of 12 months imprisonment.
On 25 August 2016, the Visa was cancelled under s 501(3A) of the Act but the cancellation was revoked under s 501CA(4) of the Act on 19 October 2016.
On 15 October 2020, the Applicant was convicted and sentenced to a total effective sentence of four months imprisonment; and was fined $1,000 in relation to various offences involving the contravention of a family violence intervention order, bail conditions and a community corrections order and committing an indictable offence, recklessly causing injury, while on bail.
On 10 November 2020, the Visa was cancelled by a delegate of the Minister under s 501(3A) of the Act, on the basis that the Applicant was serving a sentence of imprisonment resulting from the conviction on 15 October 2020, and had a substantial criminal record as defined in s 501(7)(a), (b) or (c) of the Act by reason of the sentence imposed on 1 December 2009.[2]
[2] G13 at p 95.
A delegate of the Minister decided not to revoke the cancellation of the visa under s 501(3A) of the Act on 12 April 2021 (Reviewable Decision).[3]
[3] G1 at p 9-10.
The Applicant applied to the Tribunal for a review of the Reviewable Decision on 19 April 2021.
HEARING
The Tribunal conducted a hearing of the application on 22 and 23 June 2021. The Applicant was self-represented. The Respondent was represented by Ms Sarah Thompson, a solicitor from HBL Ebsworths.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to conduct the hearing on 22 and 23 June 2021 by videoconference.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 259 (G Documents), and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 260 to 840 (SG Documents);
(b)a Notice of Cancellation of Visa, dated 25 August 2016 (Exhibit R1);
(c)the Applicant’s undated handwritten submission with attachments (Exhibit A1); and
(d)the oral evidence of the Applicant.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test as defined in s 501; or
(b) there is another reason why the cancellation should be revoked.
A Does the Applicant pass the character test?
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record.
Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. In the Reviewable Decision, the delegate relied on the Applicant’s sentence on 1 December 2009 to determine that the Applicant did not pass the character test.[4] While the sentence on 1 December 2009 satisfied the definition of a substantial criminal record in s 501(7)(c), it is questionable whether it is a proper basis for the Tribunal to determine that the Applicant did not meet the character test in this case. This uncertainty arises from the reliance placed on the 1 December 2009 conviction in cancelling the Applicant’s Visa on 25 August 2015.
[4] G2 at p 12-13.
The Visa was cancelled under s 501(3A) on 25 August 2016,[5] on the basis of:
(a)the sentence imposed on 1 December 2009, and
(b)the fact that, at the time of the cancellation, the Applicant was serving a sentence of imprisonment resulting from his conviction on 30 May 2016.
[5] Exhibit R1.
The cancellation was revoked under s 501CA(4) of the Act on 19 October 2016.[6]
[6] G11 at p 89.
In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 (XJLR) the Federal Court considered a similar factual circumstance to this case. In XJLR, a sentence of 12 months or more was relied on to cancel a visa under s 501(3A), but the cancellation was subsequently revoked. The delegate later sought to rely on the same sentence to conclude that the visa holder did not pass the character test as a basis for again cancelling the visa. Having regard to the reasoning of the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1, the Court in XJLR concluded at [81]:
...If the state of satisfaction required under s 501(3A)(a) is based on the same facts as an earlier decision, then that will involve re-making a determination on the basis of the same factual background. The Minister or a delegate can re-exercise the power conferred by s 501(3A) if subsequent events or further information provide a different factual basis from which that state of satisfaction can be reached, but neither the Minister nor the delegate can rely on subsequent events or further information simply to repeat the same decision on the basis of the same facts. A fresh serious criminal sentence must be imposed (within s 501(3A)(a)) before the power is re-enlivened for another delegate of the Minister to reconsider the exercise of power.
In XJLR the Court disagreed with the reasoning in Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 (Zyambo) and declined to follow it. In Zyambo the Court accepted that a delegate could not rely upon the same factors to satisfy both s 501(3A)(a) and (b) of the Act, if the same factors had previously been relied on to cancel a visa and the Tribunal had then revoked that cancellation. However, the court accepted that the delegate could rely on a different combination of matters which had not previously been relied upon to cancel the visa. In that case the delegate could rely on the same facts as to why the visa holder did not pass the character test (for the purposes of s 501(3A)(a)), but a different sentence of imprisonment (for the purposes of s 501(3A)(b)).
The cancellation of the Applicant’s visa on 10 November 2020, which gave rise to the application for revocation in this case, is consistent with the circumstances in Zyambo. The earlier cancellation on 25 August 2016 was based on the combination of the sentence imposed on 1 December 2009 and the Applicant’s imprisonment as per his sentence on 30 May 2016.[7] The cancellation on 10 November 2020 was based on the combination of the sentence imposed on 1 December 2009 and the Applicant’s imprisonment as per his sentence on 15 October 2020.[8]
[7] Exhibit R1.
[8] G13 at p 96.
The decisions in XJLR and Zyambo were concerned with the validity of the delegate’s decision to cancel the visa under s 501(3A). This is not a matter for review by the Tribunal. Section 500(4A)(c) precludes the Tribunal from conducting a merits review of a decision of a delegate made under s 501(3A). The exercise of the Tribunal’s power under s 501CA(4) is not conditional on the valid exercise of the cancellation power under s 501(3A). In XJLR, the Court considered the implication of a finding that the decision under s 501(3A) was invalid on the jurisdiction of the Minister and the Tribunal on review to revoke the cancellation under s 501CA(4). The Court’s conclusion at [94] was:
The consequence is that although the purported decision under s 501(3A) was invalid, the Minister’s delegate and then the Tribunal had jurisdiction to proceed to consider the applicant’s application to revoke the cancellation decision under s 501CA(4). Having regard to the broader character test applying to a review under s 501CA(4), it was open to the Tribunal to reach the conclusion that it did.
The broader character test under s 501CA(4) includes s 501(7)(d) which defines substantial criminal record to include a situation where the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more. For the purpose of applying this provision, s 501(7A) makes it clear that concurrent sentences are to be counted as part of the total of the sentences.
The Applicant’s criminal record[9] establishes that the Applicant has been sentenced on three occasions in relation to multiple offences for terms totalling in excess of 12 months, which were not considered by the delegate in cancelling the Visa on 25 August 2016. On 15 October 2020, he was sentenced to an aggregate total of 4 months imprisonment.[10] On 2 December 2019, he was sentenced to two separate terms of 30 days and a base sentence of 180 days.[11] On 30 May 2016 he was sentenced to an aggregate sentence of 8 months and a 4 month period to be served concurrently.[12]
[9] G3 at p 29-32.
[10] SG5 at p 816-820.
[11] Ibid at p 799,800, 801, 802, 806, 807, 808 and 810.
[12] Ibid at p 773-775 and 779.
On the basis of these sentences, the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7)(d) and by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
B Is there another reason to revoke the cancellation of the Visa?
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[13]
[13] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, [591].
DIRECTION 90
On 8 March 2021, the Minister issued Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90) to commence operation from 15 April 2021. Direction 90 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Clause 6 of Part 2 of Direction 90 provides that decision-makers must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out four primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) best interests of minor children in Australia; and
(4) expectations of the Australian community.
Clause 9 of Part 2 sets out other considerations. These 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;
Clause 6 stipulates that the decision maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
The principles in cl 5.2 are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
EVIDENCE
Applicant’s Criminal Record
The Applicant has an extensive criminal record, commencing in 2008. A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[14] In summary his record is as follows:
[14] G3, p 29-32.
(a)On 25 February 2008, he was convicted of driving under the influence of intoxicating liquor. He received a one month suspended sentence and had his drivers’ licence suspended for 2 years.
(b)On 1 December 2009, he was sentenced to an aggregate of 12 months imprisonment for public drunkenness, theft from shop, aggravated burglary - person present, assault police, resist police (three charges), and theft.[15]
[15] G32.
(c)On 9 February 2010, he was convicted of aggravated burglary, theft and intentionally causing injury and was sentenced to a total effective sentence of 12 months imprisonment with six months to be served, and six months suspended for two years.[16]
[16] G31 and G67.
(d)On 19 September 2011, he was convicted of recklessly causing injury and given a four month suspended sentence.
(e)On 9 July 2012, he was convicted of failing to answer bail, refusing a police breath test, exceeding prescribed breath test limit, recklessly causing injury, wilful damage to property and assault for which he was made subject to a twelve month Community Correction Order (CCO) and had his drivers’ licence suspended for twelve months.
(f)On 15 May 2014, he was convicted of two counts of failing to answer bail and fined.
(g)On 16 February 2015, he was convicted of possession of ammunition and fined.
(h)On 16 February 2015, he was convicted of breach of the CCO imposed on 9 July 2012 and a further CCO was imposed.
(i)On 30 May 2016, the Applicant was sentenced to an aggregate of 8 months imprisonment,[17] having been convicted of:
[17] G30, p 30-31.
(i)dangerous driving while pursued by police;
(ii)drive whilst disqualified (2 charges);
(iii)exceed prescribed concentration 3hrs-blood, refuse to accompany police for breath analysis and drive under influence of intoxicating liquor;
(iv)without authorisation/excuse enter private place, assault police officer (2 charges), resist emergency worker on duty;
(v)theft-from shop, dishonest undertake in disposal of stolen goods, and obtain property by deception; and
(vi)contravene community correction order.
(j)On 2 December 2019, he was convicted of possession of a controlled weapon, recklessly causing injury, unlawful assault, failing to answer bail (2 charges), resisting an emergency worker, theft and criminal damage and sentenced to an aggregate of 180 days imprisonment.
(k)On 28 February 2020, he was convicted of two counts of theft and sentenced to 48 hours imprisonment.
(l)On 15 October 2020, he was convicted in relation to various offences involving the contravention of a family violence intervention order (IVO), bail conditions and a CCO and committing an indictable offence, recklessly causing injury, while on bail and sentenced to a total effective sentence of four months imprisonment and was fined $1,000.
The Applicant’s Evidence

The Applicant provided to the Tribunal a handwritten statement in response to the Respondent’s Statement of Facts Issues and Contentions.[18] The statement did not address specific issues or events by way of factual assertions, but rather the Applicant expressed his feelings regarding the events leading up to the cancellation of his visa. He broadly attributed his offending to emotional difficulties in his personal relations with his first wife and to his use of alcohol and drugs. He expressed his love and concern for his children and stated that he was sorry for the hurt he had caused people.
[18] Exhibit A1.
The Applicant annexed to the Statement three certificates of participation in:
(a)a weekly Lifeskills Drug and Alcohol Education course provided by the Yongah Hill Immigration Detention Centre, dated May 2021;
(b)two (two hour) sessions of Managing Anger course conducted by Ngala Dads WA; and
(c)one two hour Dads Connecting with Kids course conducted by Ngala Dads WA on 1 June 2021.
Applicant’s Oral Evidence
The Applicant gave evidence at the hearing. He stated that he was born in Fiji in 1980. He married F in Fiji in 2004 and they came to Australia in 2006. Within 2 days of arriving in Australia their first child, a daughter Z was born. On arrival in Australia the Applicant and F lived with F’s parents.
The Applicant described difficulties he had in relation to his wife’s family, particularly the conflicts with his parents-in-law. He said he began drinking heavily because he had emotional and psychological problems. After three or four months he and F moved into a home of their own. In 2007 their second child, a son O, was born, and in 2009 a third child, a daughter K was born.
In 2008/9 the Applicant and F separated, and he moved into a boarding house. The Applicant said he was very emotional, stressed and broken at this time and he admitted that he drank heavily. Between 2008 and 2011 the Applicant was convicted of several offences and was sentenced to an aggregate term of one year in prison. On his release from prison in 2011, the Applicant was reunited with F and they started living together. A fourth child, a daughter T was born in 2012. He separated from F in 2014 and lived with a friend of his mother in Prahran who looked after him for 8 months following an incident in which he was stabbed. He returned to live with F but in 2015 they separated, and she moved away to live in Cranbourne.
At about this time he began a relationship with H. He said that during this time he had regular contact with his children and visited them every second day and sometimes stayed overnight. He said that he moved in with H in 2016 and lived with her until he was incarcerated in September 2020. He described his relationship with H as a loving relationship but admitted that he and H were heavy drug users. He said that he had problems with abuse of alcohol since before he left Fiji and had used marijuana regularly from that time. He said that he began using methamphetamines (ice) in about 2014 after he was released from prison. He said that his use of ice was catastrophic and his use increased once he started seeing H. He said that he and H were taking ice almost hourly by the time he was arrested in September 2020.
In April 2019, the Applicant and H had a son, J. The Applicant admitted in cross examination that he was in prison when J was born and that he did not get out of prison until J was about 6 or 7 months old. He said that in about August 2020, J was taken from H by the Department of Human Services (DHS) and placed in temporary care. The Applicant said that he was concerned that J would be placed in the care of H’s parents whom he did not like. He said he persuaded his ex-wife F to take care of J and by arrangement with her, a court order was made in October 2020 that F have custody of J. The Applicant stated that since he was taken into custody on 3 September 2020, H had taken steps to address her drug problems, had undertaken counselling, and submitted to random urine testing in order to regain custody of J. He stated that J was returned to H after 6 months in the care of F, and H continued to have custody of J subject to monitoring by DHS.
In cross examination, the Applicant conceded that he had been convicted of a larceny offence in Fiji before coming to Australia. He also conceded that he had been formally notified by the Department of Immigration that it had decided not to refuse him a visa because of that conviction, but had issued him with a warning letter that further offending could result in his visa being cancelled.
The Applicant admitted that he was on parole for offences committed in 2009 when he committed further offences in 2010. In that incident, he had been drinking heavily with an acquaintance and they had gone to the victim’s room to confront him over his accusations that the Applicant had stolen a bicycle. The Applicant said that the instigator of the confrontation was his co-offender and that he had just put on an act to play along with him. The Applicant admitted that he had punched the victim in the face forcefully four times and that he had presented himself to the police and confessed, when he heard they were looking for him. He admitted that he had told the police that he punched the victim to inflict pain, but he said he was just playing along with what his co-accused wanted to do and he had no intention of harming the victim.
The Applicant acknowledged that his conviction on 19 September 2011,[19] for recklessly causing injury, related to an incident on 26 November 2008. He confirmed the police summary of the incident,[20] that he followed the victim out of a hotel and when the victim refused to give him a cigarette, he punched the victim numerous times to the head.
[19] SG5 at p 746.
[20] SG3 at p 474.
The Applicant was asked to comment on a police summary of an incident on 8 September 2011,[21] which stated that he attended the home of his ex-partner F and stayed the night and when told to leave by F he became angry and raised a rolling pin above his head causing her to fear that she would be struck. The Applicant said he could not recall the incident or whether F had sought an IVO against him because of the incident. The Applicant was convicted of unlawful assault over the incident and made subject to a CCO.[22] The Applicant confirmed that he had not undertaken the treatment and rehabilitation for alcohol abuse and anger management required under the CCO and admitted that he had breached the CCO and was made subject to a further CCO on 17 February 2015.[23]
[21] Ibid at p 469.
[22] SG5 at p 752.
[23] G3 at p 31-32.
The Applicant was asked about his convictions on 30 May 2016.[24] He confirmed that the convictions for assaulting police arose out of a driving offence. He said he had been drinking and borrowed a friend’s fast car so that he could rush to see his children before they went to bed. He was convicted of driving while disqualified, driving under the influence of alcohol and dangerous driving while pursued by police.
[24] Ibid at p 30.
The Applicant was questioned about his conviction for assault on 2 December 2019. He confirmed that the offence occurred on 27 July 2017. He said he was high on ice and had recently got out of prison. He had heard that the victim had tried things on with H. He confirmed the police report that said the Applicant had approached the victim on a bus and without any provocation, the Applicant punched the victim to the face/jaw area 4 or 5 times causing him suffer lacerations and to lose a tooth.[25]
[25] SG3 at p 451.
The Applicant was questioned about an incident giving rise to his conviction in October 2020 for a breach of an IVO taken out for the protection of H. The Applicant confirmed that an interim IVO had been taken out following an incident where H had fled from the car he was driving because she was fearful. The Applicant admitted that he was driving under the influence of drugs and had not slept. He confirmed the substance of the police report regarding the incident.[26] He explained that the interim IVO had been made permanent following a further driving incident described in a police report to the Court on 15 October 2020 as part of the sentencing brief.[27] In that incident the Applicant’s dangerous operation of a motor vehicle during which he indicated that he would deliberately crash the vehicle, causing his partner H to fear for her life.[28] The Applicant admitted that he breached the permanent IVO by going to H’s residence immediately after being released on bail in relation to previous charges. He confirmed that the IVO was still in place and would expire on 6 July 2021.
[26] Ibid at p 490.
[27] G6 at p 45.
[28] Ibid at p 45-46.
The Applicant admitted to having punched H in the face in front of her 13 year old daughter, as stated in a police report regarding the incident on 6 August 2020,[29] but he insisted it was unintentional. He denied the police statement that he had a history of family violence.
[29] SG5 at p 486.
The Applicant admitted that an IVO had been taken out against him by a local church. He asserted that all he had done was contest their views.
The Applicant claimed that he had not had enough support in the community to deal with his emotional or mental health issues. He said that he had trouble dealing with his emotions and anger management. He said that he had grown up in a culture of toxic masculinity in Fiji which made it difficult for him to be open and seek help for his problems. He said he resorted to drugs and alcohol when he felt overwhelmed, but in prison and detention he was calm and collected and was able to avoid drug use.
He said he thought his problems were emotional and doubted that he had a mental illness such as schizophrenia, but acknowledged that he had not sought out professional advice while in the community. He stated that if he is released into the community, he would identify opportunities for professional help, courses he could do, and would join a church and attend Alcoholics Anonymous meetings. When questioned about this, he conceded that he had not identified any specific opportunities, but he had asked his ex-wife and children to draw up a list for him.
He said he had participated in many programs while in prison but found the Lifeskills Drug and Alcohol Education program provided at the Yonga Hill detention centre very helpful because it assisted him to understand his emotions and how to control himself. He said he participated in the program for two hours, twice per week.
The Applicant said that he would find life difficult if he is deported to Fiji. He acknowledged that he has a brother and sister in Fiji but stated that they were struggling and were not in a position to support him. He said his sister was a single mother and his brother was unemployed, had a wife and two children, and was being supported financially by his brother-in-law in New Zealand. He acknowledged that he also has extended family in Fiji but said he did not keep in contact with them. He confirmed that before coming to Australia, he had worked in Fiji in a service station and in the tourist industry as an activities co-ordinator in a resort, where his English language skills were a great advantage; although he doubted whether they would be valued so much today. He claimed that there was no psychological or mental health support available for him in Fiji, but in cross examination he conceded that he had not investigated the opportunities currently available and was basing his opinion on what he could recall from his time in Fiji before 2006.
Other Evidence
The Applicant did not call any witness or tender any written statements in support of his application, although his ex-wife F did provide a statement dated 7 December 2020 to the Department in support of his initial application for revocation. [30] That statement was included in the G Documents and reads as follows:
My name is …(I am the) ex-wife of Michael Wilson. We share four children together. Currently I am taking care of Michael’s youngest son J who is 20 months of age. He is at the transitional stage of slowly going back into the full time care of his mother. Writing this letter has not come easily, quite the contrary. It has come with a great deal of thought and heavy contemplation. I am motivated by sincerely wanting only what is best for this beautiful, young child. I understand that Michael is facing the very real possibility of being deported back to Fiji. To be honest, for a long time, this was something that I too hoped would happen. My desire stemmed from personal hurt and pain. Right now though, considering there is an innocent life in the picture, I am troubled at the thought of J’s father being removed from his sons life. In all our years together and despite all the struggles we faced, I can say that Michael is sincerely a good father. He loves his children immensely and does everything in his power to support and be available for them as best as he can. Because of the complications in our own relationship, we saw it best that I raise our children on my own. That way, the children would not have to grow up in an environment of conflict. In his love for our children, Michael respected my request and stepped back from his involvement in our lives. This has been something I have been extremely grateful for.
With the situation at hand, I am making a request for Michael to be permitted to remain in Australia, under the condition he follows any and all court orders in order to be in the life of his children, particularly J. I believe wholeheartedly that J will have the best chance at life with not only his mother, but also his father and siblings being a part of it. I hope that my voice in this matter will be considered. Thank you for your time in reading this letter.
PRIMARY CONSIDERATIONS – CLAUSE 8 OF PART 2
[30] G22 at p 141.
1 Protection of the Australian community from criminal or other serious conduct
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 90.
Clause 8.1(2) requires decision-makers to give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
A The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, cl 8.1.1(1) of Part 2 requires that decision-makers have regard to the factors set out in cl 8.1.1(1)(a)–(g). A consideration of the factors, relevant in the Applicant’s case, is set out below:
Principle (a) – violent and/or sexual crimes are viewed very seriously - without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view very seriously: violent and/or sexual crimes; crimes of a violent nature against women or children, regardless of the sentence imposed; acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
There is no evidence of the Applicant being involved in offences of a sexual nature but his offending has involved crimes of actual and threatened violence. He has been convicted of multiple violent offences in separate incidents on 1 December 2009, 9 February 2010, 19 September 2011, 9 July 2012, 30 May 2016 and 2 December 2019.[31]
[31] See G3.
The Applicant was convicted of offences involving violence in November 2011 when he made an unprovoked attack on a stranger outside a hotel, and in July 2017 when he assaulted a person on a bus. In both cases the assaults involved repeated punches to the victim’s head.
The incident giving rise to the Applicant’s conviction for various offences on 9 February 2010, involved an assault by the Applicant and an accomplice on an acquaintance who had accused the Applicant of stealing a bicycle. The Applicant and the accomplice entered the victim’s residence and assaulted him. The sentencing judge described the Applicant’s role as follows:
Wilson you then entered the room and told the victim that he had told someone that you had stolen the bike. The victim replied that he knew you stole his bike because it has been seen at your house. You Wilson then punched the face of the victim four times with a clenched fist. Those blows broke three of the victim’s teeth. You both appear to be strong well built men and your blows were administered with force. You also caused a graze of an upper eye lid, bruising around the right eye and cuts to the upper lip and left cheek.[32]
[32] G8 at p 68-69.
In an incident in April 2016,[33] the Applicant assaulted his partner H by punching her in the face and was convicted of assaulting his ex-wife F on 8 September 2011 by threatening to strike her with a rolling pin.[34]
[33] SG3 at p 486.
[34] Ibid at p 469.
He has been convicted on multiple occasions of assaulting police officers, including in one incident on 2 May 2016 of causing injury by throwing a children’s bicycle at an officer.[35]
[35] Ibid at p 493.
The Magistrate reviewed the Applicant’s prior record in sentencing him on 5 October 2020 stating that he had an appalling history involving violence-related offences on the public, on strangers.[36]
[36] G6 at p 52.
In addition to the violent offences the Applicant’s criminal history records that over the period from 2008 to 2020, he has been convicted on a range of offences including driving under the influence, public drunkenness, theft (multiple offences), aggravated burglary, refusing a breath test, wilful damage to property, obtaining property by deception, and possessing controlled weapon.[37] He has also been convicted of failing to answer bail (multiple offences), breaches of an IVO, contravening a CCO and driving while disqualified. He has offended while on parole and on bail.
Principle (b) – 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, are serious.[38]
[37] G3 at p 29-31.
[38] See cl 8.1.1(1)(b)(ii) of Direction 90.
There is no evidence that the Applicant has offended in relation to especially vulnerable members of the community such as the elderly or the disabled. However, he has multiple convictions for assaults on police in the performance of their duties on 1 December 2009 (four offences), 9 July 2012 and 30 May 2016 (two offences).[39]
[39] See G3.
Principle (c) – the sentence imposed by the courts for a crime or crimes
The Applicant was sentenced to terms of imprisonment on eight occasions between 2008 and 2020.
Principle (d) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant’s criminal record shows that he has been convicted of offences, and in most cases multiple offences, in all but three years in the period 2008 to 2020 (inclusive).[40] While there is no clear trend of increasing seriousness apparent in the record the Applicant has maintained throughout that period a consistent level of serious offending.
[40] Ibid.
Principle (e) – the cumulative effect of repeated offending
The Applicant’s offending has included multiple property offences and repeated violence over a substantial period, the cumulative effect of which is to demonstrate that he has not been constrained by the laws of Australia from infringing on the physical integrity and property rights of members of the community when he has been minded to do so.
Principle (f) – whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending
There is no evidence that this consideration is relevant in the Applicant’s case.
Principle (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).
15/06/2021

In his oral evidence the Applicant confirmed that he had received a letter from the Department of Immigration in 2006 informing him that it had decided not to refuse his application for a visa because of his prior conviction in Fiji but warning him that further criminal conduct could lead to cancellation.
Following separate sets of convictions on 1 December 2009,[41] and 9 February 2010,[42] the Applicant was notified in writing that the delegate was considering the cancellation of his Visa under s 501(2) of the Act on 15 April 2010.[43] While ultimately the delegate decided not to cancel his Visa,[44] the Applicant was made aware (in writing) that cancellation was a possible consequence of his offending. The Applicant acknowledged this on 21 July 2010 in a written statement confirming that he understood that he could again be considered for refusal or cancellation of his Visa if further information came to the attention of the Department, and that his previous conduct could be reconsidered in that context.[45]
[41] G32.
[42] G31 and G67.
[43] G28 at p 195.
[44] G10 at p 86.
[45] Ibid at p 88.
Following his convictions on 30 May 2016, for which he was sentenced to an aggregate of 8 months imprisonment,[46] the Applicant's Visa was cancelled on 25 August 2016 under s 501(3A) of the Act, but the cancellation was subsequently revoked, under s 501CA(4) of the Act on 19 October 2016.[47] The Applicant was notified of the decision to revoke the cancellation of the Visa by letter dated 19 October 2016.[48] In that letter the Applicant was warned that this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending.
[46] G30 at p 31.
[47] G11 at p 89.
[48] Ibid at p 89.
On 25 October 2016, the Applicant provided a handwritten note confirming that he understood the importance of the revocation decision and acknowledging that he understood that he could be considered for cancellation of any visa at any time, if information of relevance came to the attention of the Department; and that if that happened, his past conduct and previous relevant information could also be reconsidered.[49]
[49] Ibid at p 92.
Despite these warnings, the Applicant went on to commit further serious offences for which he was convicted on 3 December 2019, 8 February 2020 and 15 October 2020.[50]
[50] See G3.
Conclusion
Having regard to the factors set out in cl 8.1.1(1)(a)–(g) of Direction 90, the Tribunal is satisfied that the Applicant’s criminal conduct over the period from 2008 until his conviction in October 2020, is very serious conduct and should it be repeated constitutes a serious threat of harm to the Australian community.
B The risk to the Australian community should the non-citizen commit further offences or engage in other serious misconduct
Clause 8.1.2(1) of Part 2 of Direction 90 states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(a) Nature of the harm
For the reasons discussed, the Tribunal is satisfied that the Applicant’s offending is serious. Of most concern are his multiple convictions for offences involving violence, which have inflicted serious physical harm on his victims and have included incidents of family violence.
Also of concern are his repeated offences against the police, breaches of bail and parole conditions, failure to comply with CCOs and IVOs, and serious offences involving driving while suspended and under the influence of alcohol. These offences taken together demonstrate a consistent pattern of disrespect for the enforcement of the law and the Applicant’s disregard for the consequences of his actions.
In addition, the Applicant has multiple convictions for dishonesty offences which go to the question of his personal integrity.
(b) The likelihood of re-offending
The Applicant’s plea to the Tribunal is that he should be given another chance. He says he has now recognised the cause of his offending and is committed to not repeating that behaviour. He has expressed remorse. On this basis, the Applicant invites the Tribunal to conclude that he is not a risk of reoffending.
Unfortunately, the Tribunal’s task in assessing the likelihood of the Applicant re-offending is not assisted in this case by any independent professional assessment of the Applicant’s state of mind and predisposition, or any objective witness who could speak from experience or particular knowledge to objectively assess the Applicant’s propensity to re-offend.
The Applicant made direct statements in his evidence professing his remorse for his actions and the hurt he had inflicted on his family and his victims. The Tribunal is satisfied that the Applicant has genuine remorse, but it is not unqualified. In explaining his role in the assault for which he was convicted on 9 February 2010, the Applicant sought to blame his co-accused for initiating the assault and described his participation as just playing along and not intending any harm. He also said his assault on his partner H on in April 2016, in which he punched her in the face, was unintentional. He sought to put a gloss on his conviction for dangerous driving while pursued by police (and numerous related offences) on 30 May 2016, by saying that he was in a hurry to see his children before they went to bed.
Having heard the Applicant’s evidence as a whole, the Tribunal’s overall assessment is that the Applicant regrets the consequences of his criminal conduct but he is not so deeply remorseful that he could not be drawn into further offending by the factors which led him into his previous criminal behaviour.
The evidence suggests that there are a number of contributing factors to the Applicant’s offending, principally the Applicant’s emotional and psychological state and his substance abuse.
The Applicant acknowledged that drug and alcohol abuse had played a significant part in his offending. The Sentencing Judge in the County Court of Victoria on 9 February 2010, accepted that the excessive consumption of alcohol was a significant factor in the Applicant’s offending on that occasion.[51]
[51] G8 at p 68-70.
The Applicant’s evidence was that he had used marijuana since before he arrived in Australia and had been using ice since 2014. His evidence was that after he started a relationship with H, his use of ice increased and by the time he was taken into custody in September 2020 his use was catastrophic. He admitted that his drug taking had been a factor in his offending and that he had resorted to binge drinking and excessive drug use when he felt overwhelmed.
The Applicant claims that he had been able to give up drugs and alcohol since being imprisoned in September 2020. He said he had undertaken drug and alcohol courses and he claimed that he is able to avoid drugs and alcohol when in prison as he is calm.
The Applicant acknowledged that he has emotional problems and in the past, when under stress, he has become angry and been unable to control his emotions. He now claims that he is better able to understand his emotions and to control them as a result of the Lifeskills course he has undertaken at the Yonga Hill detention centre. The Applicant denied in his oral evidence that he is schizophrenic as was suggested by his counsel in court on 15 October 2020.[52]
[52] G6 at p 50.16.
Whether or not the Applicant suffers from an underlying mental health condition is not clear on the evidence. In sentencing the Applicant in October 2020, the Magistrate canvassed the issue of the Applicant’s mental health and concluded, based on the submissions made in that case, as follows:[53]
I accept you have some personal issues to work through, but there's nothing on paper to say to me that you are someone who suffers from a mental illness that might explain - go somewhere to explain your behaviours. So the question for me is are these symptoms that you experience are symptoms that are related to your drug abuse or your alcohol abuse? I don't know. So while I can take some of that into account and how that might impact on you in prison, it doesn't really assist me in explaining these sorts of behaviours.
[53] Ibid at p 56.
A psychological assessment of the Applicant on 20 August 2019 did not provide any definitive diagnosis of a mental condition but noted that the Applicant had been prescribed antipsychotic medication while in prison.[54] The author of the report suggested that the Applicant’s criminal behaviour may indicate that he is in the prodromal phase of a psychotic disorder. The author concluded that the Applicant would benefit from ongoing drug and alcohol counselling and from ongoing mental health treatment and may need medication long term.[55]
[54] SG4 at p 720.
[55] Ibid [35] on p 726.
A psychiatric court report dated 2 December 2019, assessed the Applicant as having emotional dysregulation, poor self-esteem, difficulties in establishing meaningful relationships and mistrust of people’s intentions.[56] The report also noted that the Applicant was noncompliant with his medication. The report recommended that the Applicant needed access to mental health services and that intensive monitoring of psychotic symptoms, risks and compliance may be needed, with consideration for admission into an in-patient unit in case of further deterioration. The report also recommended that the Applicant attend drug and alcohol counselling.
[56] Ibid at p 727.
On the basis of this evidence, the Tribunal is satisfied that the Applicant has significant emotional and psychological issues, and may have an underlying mental health condition, which has contributed to his offending and which require ongoing monitoring and treatment. It is clear from the Applicant’s evidence that he has placed his faith in the Lifeskills course he has undertaken in detention, as the way to address these significant issues. He demonstrated that he has no clear idea what he would do to address these issues if released into the community.
In addition, the Tribunal is not confident that the steps taken to date by the Applicant to address his substance abuse are likely to be effective to control his use of alcohol and drugs once he is released into the community, given his sustained and heavy use of drugs and alcohol in the past. The circumstances he has faced in prison and now in detention are very different from those in the community when he will again be exposed to the life stressors he has admitted led to his substance abuse. The psychological assessments emphasised that he needs ongoing counselling and treatment for his drug and alcohol abuse. The Applicant has demonstrated in the past that he has been unwilling to address the problem outside of the prison setting.
In addition, the Applicant’s criminal history demonstrates that he has been a frequent and persistent offender. He has been undeterred by warnings about the possible consequences of offending on his visa status. He has been undeterred by periods of imprisonment. He has breached parole and bail conditions. He has failed to comply with CCOs and IVOs. He has failed to take advantage of opportunities made available to him as conditions of his CCOs, and particularly attending drug and alcohol assessment and treatment.[57] His responsibilities as a father and partner have not prevented him from offending.
[57] Ibid at p 737.
Having regard to these matters the Tribunal is satisfied that there is a high risk that the Applicant would reoffend if he remains in the Australian community.
Conclusion
For the reasons discussed, the Tribunal is satisfied that there is a high risk that the Applicant would commit further serious criminal conduct if released into the community and accordingly, the protection of the Australian community, a primary consideration under Direction 90, weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
2 Whether the conduct engaged in constituted family violence
Clause 8.2(1) of Direction 90 states:
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.
Clause 4(1) of the Direction defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful, and includes assault and sexual assault.
Clause 8.2(2) relevantly states that 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.
The Applicant has convictions for family violence offences.
On 9 July 2012, the Applicant was convicted[58] of an unlawful assault upon his ex-wife F on 8 September 2011 by threatening to strike her with a rolling pin.[59]
[58] SG5 at p 752.
[59] SG3 at p 469.
In April 2016, the Applicant assaulted his partner H by punching her to the face in the presence of her 13 year old daughter.[60] He admitted doing so in giving his evidence to the Tribunal but sought to excuse his actions by claiming that it was unintentional.
[60] Ibid at p 486.
Subsequently, the Applicant was the subject of an IVO for the protection of H, her daughter and his son J. The IVO was confirmed following an incident in which the Applicant drove his vehicle in an aggressive manner and threatened to run it into a pole, causing H to fear for her safety. On 15 October 2020, the Applicant was convicted of contravening the IVO almost immediately upon his release from custody on bail on 24 August 2020.[61]
[61] SG5 at p 816.
The Respondent also sought to rely on Victoria Police Incident Summary Reports,[62] which included eight family violence reports involving the Applicant recorded with police, dating back to 2016[63] as information or evidence from independent and authoritative sources.
[62] SG3 at p 439-507.
[63] Ibid at p 441.
The reports were put to the Applicant and he was asked to respond to the assertion that they evidenced a history of family violence. He did not respond to each of the separate reports individually, but denied that he had a history of family violence. The Tribunal accepts that the reports are an independent and authoritative source but nevertheless the incident reports should be treated with caution as they are untested summaries of alleged conduct. The Tribunal does not accept the reports as proof of the Applicant’s alleged conduct in each of the incidents. The best that can be said is that they establish that the police had been called to attend to eight alleged family violence incidents involving the Applicant since 2016. The Tribunal does not draw any conclusions beyond this.
However, the two separate incidents of assault involving the Applicants partners are clearly evidence of family violence. In addition, the Applicant’s conviction for contravening the IVO on 24 August 2020 meets the definition of family violence in that it a conviction for conduct amounting to threatening or other behaviour …causes the family member to be fearful.
Clause 8.2(3) relevantly states that in considering the seriousness of the family violence engaged in by the noncitizen, 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 noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant’s was involved in three incidents of family violence over a four year period. The incidents were each serious. However, there was no obvious trend of escalating seriousness, and no evidence of any specific cumulative effect of the repeated acts. The Applicant acknowledged the incidents; but did not unequivocally accept responsibility and he produced no evidence of any rehabilitation specifically directed at family violence. The Tribunal’s overall assessment is that the Applicant’s conduct amounted to serious family violence.
Whether the Applicant’s conduct constituted family violence is a primary consideration under Direction 90 in favour of not revoking the cancellation of the Applicant's Visa. The Tribunal gives it substantial weight.
3 Best interest of minor children in Australia affected by the decision
Clause 8.3(1) of Part 2 of Direction 90 provides that decision-makers must 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.[64] 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 pursuant to cl 8.3(3).
[64] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made – cl 8.3(2) of Direction 90.
The Tribunal notes that cl 8.3 of Part 2 of Direction 90 requires the Tribunal to consider the interests of the child affected by the decision. The Applicant gave evidence and stressed in his submissions his strong desire to remain in Australia to be a father to his children. While the interests of the Applicant are able to be considered generally under other parts of the Direction, cl 8.3 requires the Tribunal to focus on the best interests of the child. The question is not whether it is in the Applicant’s best interests to remain in Australia with his children.
In this case the Applicant has identified a number of minor children whose best interests require consideration:
(a)his children with F:
(i)daughter Z (age 15);
(ii)his son O (age 14);
(iii)his daughter K (age 12);
(iv)his daughter T (age 9), and
(b)his son with H, J (age 2).
In accordance with cl 8.3(3) of Direction 90, each of the children requires separate consideration to the extent that their interests may differ. The Tribunal is satisfied that there is a discernible difference between the interests of J and the other children by reason of his age, his different parentage and the circumstances of his early separation from his parents following the intervention of DHS. However, the Applicant has not identified any particular differences between the interest of his four children with F which would provide a justification for addressing their interests individually.

In considering the best interests of the child, cl 8.3(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(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.
The Applicant’s Children with F
The Applicant’s ex-wife F has provided a statement supporting the revocation of cancellation of the Visa, but ostensibly on the grounds that it in the interests of the Applicant’s son J. She does not make that positive affirmation in relation to the interests of her own children.
Her statement as it relates to her own children is ambivalent. She states:
.. I can say that Michael is sincerely a good father. He loves his children immensely and does everything in his power to support and be available for them as best as he can. Because of the complications in our own relationship, we saw it best that I raise our children on my own. That way, the children would not have to grow up in an environment of conflict. In his love for our children, Michael respected my request and stepped back from his involvement in our lives.
While she states that the Applicant is a good father, the tenor of her statement is that the best interests of her children are served by the Applicant not being involved in their upbringing.
The Applicant gave evidence that notwithstanding the separation between he and F, he had regular contact with his children and on occasions stayed overnight at their house. There is evidence to suggest that the Applicant has not accurately represented the arrangements. First, the Applicant has spent periods in prison or detention in 2016, 2019 and 2020 since he separated from F in 2015. The Applicant had, by his own admission, a serious drug problem after he began a relationship and moved in with H in 2016. There was an incident on 8 September 2011 noted in a police report in which F had called the police to remove the Applicant because he had entered and stayed at her home overnight against her wishes.[65]
[65] SG at p 469.
The Applicant said that he has kept contact with his children while in prison via social media, video calls and messaging.
The Tribunal is satisfied that the Applicant has endeavoured to be a good father and has maintained some contact with his four children from his marriage to F. However, it is clear from F’s statement that in her parental role, she believes her children’s best interests are served by being raised by her alone. This is understandable as the Applicant’s prior behaviour towards her, his criminal offending and his drug and alcohol abuse could have a negative impact on the children. By F assuming the sole parental role, the involvement of the Applicant is relegated to a secondary role in the children’s day to day life.
As a general principle, children’s best interests are served by continuing direct contact with their parents. Applying this principle, the Tribunal is satisfied that it is in the best interests of the four children for the Applicant to remain in Australia. However, the Applicant’s involvement in the children’s lives has been interrupted; he has had frequent periods of absence in prison and detention where he has had little or no direct contact with the children. F has assumed the primary role as the children’s parent since at least 2015. F’s statement suggests that the Applicant’s conduct prior to their separation in 2015 was detrimental to the children. Given a high risk that the Applicant will reoffend, there is a significant chance that the Applicant would have a negative future impact on his children and may expose them to further family violence.
If the Applicant were deported it would not prevent the children continuing their relationship with him. The Applicant has maintained a relationship with the children while he has been in prison and detention via social media and by other electronic means. That could continue if he were in Fiji. In addition, Fiji is reasonably accessible and there would be an opportunity for the children to visit the Applicant. The Applicant confirmed that each of the children have passports and have visited relatives in Fiji and New Zealand.
Taking these matters into account, the presence of the Applicant in Australia is likely to have a limited effect on the best interests of his four children and accordingly the Tribunal gives this consideration limited weight.
The Applicant’s Son J
The Applicant has expressed his love for his son J and his commitment to being a good father for him. The Tribunal accepts the genuineness of these statements and recognises that given that J is only two years old, it would be in his best interests to have his father present as he grows up.
However, the Tribunal is cautious about making that assessment. There is no evidence before the Tribunal by way of an independent assessment of the child’s best interests from an emotional, financial, security, health or educational perspective. The child is too young to speak for himself and there is no evidence from his mother. His mother is currently separated from the Applicant and an IVO is in place for her protection. To add to this, the evidence does not make clear the extent to which DHS has any ongoing role in relation to the welfare of J; or has a view on whether it is in J’s best interests for the Applicant to remain in Australia given his criminal convictions, his drug and alcohol abuse and breach of IVOs.
The only independent statement is from the Applicant’s ex-wife F which states:[66]
I believe wholeheartedly that J will have the best chance at life with not only his mother, but also his father and siblings being a part of it.
[66] G22 at p 141.
This statement of support for the Applicant to remain in Australia is not unconditional. Her request is under the condition he follows any and all court orders. In addition, it is predicated on her admission that the deportation of the Applicant was something that I too hoped would happen.
J was born in April 2019 when the Applicant was in prison. The Applicant did not see J until he was 6 or 7 months old. In July/August 2020 J was taken into care by DHS because of concerns for his welfare. He remained in DHS care until 15 October 2020 when a court order was made placing him in the care of F. The Applicant was arrested and placed in custody on 3 September 2020 and has remained in prison and detention ever since.
Accordingly, the Applicant’s physical contact with J is effectively confined to the period between September 2019 (when the Applicant was released from prison) and July/August 2020 (when J was taken into care by DHS). It is significant to note that during that period, the Applicant stated he and H were heavily using ice to an extent that he described as catastrophic, and an IVO was taken out for the protection of H, which was later extended to include J. In addition, while there is no evidence of the domestic circumstances in which J was being raised during this period, the fact that DHS intervened and took the child into state care, suggests that there was a significant basis for concern for the child’s welfare.
The Applicant has had significant periods of absence and his conduct during the period that he did have direct contact with J, if repeated, is likely to negatively impact on J’s life. While there is no evidence that J has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct, there is a high risk that the Applicant will reoffend and this could have a negative impact on the child in the future.
The Tribunal also notes that H is currently performing a parental role in relation to J, albeit that this may be monitored by DHS.
Taking all of these considerations into account, the Tribunal is prepared to accept that it may be in the best interests of J for the Applicant to remain in Australia, but that finding is qualified by the concern that the views of the child’s mother and DHS are not known and there is otherwise no objective assessment available as to the child’s circumstances and the effect of the Applicant’s past conduct has had on him, and the risk for the child of the Applicant re-offending if he is released into the community.
For these reasons the Tribunal gives limited weight to this consideration in relation to J.
Conclusion
The Tribunal is satisfied that the best interests of the Applicant’s five children weigh in favour of revocation, but even though this is a primary consideration under Direction 90, the Tribunal gives it limited weight for the reasons identified.
4 Expectations of the Australian Community
Clause 8.4 of Part 2 of Direction 90 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 79 which mirrors the wording of cl 8.4(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[67]
[67] FYBR v Minister for Home Affairs [2019] FCAFC 185, [75]-[76].
The Applicant’s criminal conduct raises serious character concerns. He has committed multiple acts of violence, including unprovoked attacks on his victims; and threatened and actual violence against his domestic partners. He has committed fraud and acted dishonestly. He has acted in breach of bail conditions, failed to comply with IVOs and CCOs and offended while on bail and parole. He has been guilty of multiple offences against police officers. He has committed serious driving offences which have involved risk to the public.
The Tribunal is satisfied that the Applicant’s record of criminal conduct amounts to a serious and sustained breach of the community expectation as expressed in Direction 90. This is a primary consideration and weighs against revocation.
OTHER CONSIDERATIONS – CLAUSE 9 OF PART 2
1 International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. In this case, the Applicant has not raised any such claim.
2 Extent of impediments if removed
Clause 9.2 of Part 2 of Direction 90 requires that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is relatively young. He is 41 years old. He left Fiji when he was 25 so he has experience in the country as an adult. There are no language issues and no significant cultural barriers to him integrating into the Fijian community.
The Applicant has a brother and a sister in Fiji, although their capacity to provide him with material assistance in establishing his life in Fiji is likely to be limited. He also has extended family in Fiji with whom he claims not to have maintained contact, but he will have an opportunity to re-establish familial relations upon his return. He also has his mother and two other siblings in New Zealand,[68] who are just as accessible from Fiji as from Australia.
[68] G15 at p 119.
While it is unclear whether the Applicant has a definite mental health condition, he does have emotional and psychological issues for which ongoing treatment has been recommended. He also has related substance abuse issues which require treatment. The availability of professional help for these conditions in Fiji has not been established on the evidence. The Tribunal assumes that the mental health system in Fiji is not as advanced as in Australia and obtaining treatment is likely to impose a significant impediment for the Applicant if he is deported to Fiji. There is no evidence that the Applicant has any other medical requirements or that he would be exposed to any heightened medical risks if deported.
As to employment, the evidence indicates that the Applicant would have reasonable prospects of obtaining employment in Fiji. He was educated in Fiji and completed Year 11 at school. His written submissions in this matter were well-written and he made articulate oral submissions indicating that he has employable skills. He has varied work experience in Australia and has completed a Certificate III in Civil Engineering.[69] While he may experience some difficulty in obtaining employment because of his extensive criminal record and his past problems with drug and alcohol abuse, such difficulties are unlikely to be any worse than he might experience in Australia.
[69] Ibid at p 121.
Having regard to these matters, the Tribunal is satisfied that the Applicant would face some limited impediments related to his emotional and psychological issues in establishing himself and maintaining basic living standards in Fiji in the context of what is generally available to other citizens of that country.
This factor weighs marginally in favour of revocation and the Tribunal gives it little weight.
3 Impact on the victims
Clause 9.3 of Part 2 requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[70]
[70] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17] - [21], which considers the analogue consideration at 14.4 of Direction No 79.
There is no evidence before the Tribunal as to any adverse impact likely to result for the victims of the Applicant’s offending if the Applicant is to be granted a visa to remain in Australia.
4 Links to the Australian Community
Clause 9.4 of Part 2 of Direction 90 requires that decision-makers reflect on the principles at cl 5.2 and have regard to the considerations set out in cl 9.4.1 to 9.4.2.
(a) Ties to Australia
Clause 9.4.1. refers to the strength, nature and duration of the non-citizen’s ties to Australia and sets out the following principles:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
11. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Applicant’s principal ties to Australia are his 5 children, who are all Australian citizens or permanent residents. He has expressed a strong desire to remain in Australia to be able to participate in the life of his children. For the Applicant, his children are his strongest links to Australia.
The Applicant has been separated from F since 2015 and for many years, their relationship was subject to conflict and periods of separation. The Applicant spent several periods in prison and at the time of his offending in 2010, the Court transcript records that he was living alone in single room accommodation.[71] His ex-wife indicated in her statement of 7 December 2020, that her main motivation for opposing the deportation of the Applicant was the interests of his son J. She said:
I understand that Michael is facing the very real possibility of being deported back to Fiji. To be honest, for a long time, this was something that I too hoped would happen. My desire stemmed from personal hurt and pain. Right now though, considering there is an innocent life in the picture, I am troubled at the thought of J’s father being removed from his sons life.
[71] G8 at p 68.
At the time of his arrest in September 2020, the Applicant was subject to an IVO preventing him from having access to his ex-partner H and his son J. The IVO remains in place until at least 6 July 2021. The Applicant claims he is still in a loving relationship with H but she has not given evidence or made a statement in support of the Applicant at any stage in relation to the revocation of the cancellation of the Visa.
The Applicant’s immediate family, his mother and four siblings, are not in Australia. They live in New Zealand or Fiji.[72] The Applicant’s father is deceased.
[72] G15 at p 119.
The Applicant has claimed he has other relatives in Australia from his extended family,[73] but this is at odds with the statement made to the court by counsel on his behalf on 15 October 2020[74] that:
He actually doesn't have any family in Australia, Your Honour, he's of Fijian descent, so his family is either in Fiji or in New Zealand, and even when he was remanded, there was no family members for me to call and get on to in the state of Victoria.
[73] Ibid.
[74] G6 at p 48.
If in fact the Applicant has relatives in Australia, there is no evidence from them or from the Applicant as to the impact on them of the Applicant being removed to Fiji. There is no evidence that the Applicant plays a supportive role for any of them such that his removal to Fiji would substantially affect their lives. Similarly, the Applicant has not established that he would be significantly disadvantaged if he were to be separated from those extended family members if he returned to Fiji.
The Tribunal is satisfied that if the Applicant was in Fiji, there would be a reasonable opportunity for him to maintain a relationship with extended family members in Australia via social media.
The Tribunal recognises that the Applicant has a connection with Australia by reason of having lived in the country since 2006 although the significance of this is diminished by the fact that the Applicant started offending shortly after his arrival in Australia. He has also made a positive contribution to the Australian community through his involvement in gainful employment and some charity work. However, there is no evidence of him establishing enduring ties with members of the Australian community other than his family or with any particular community organisations.
On balance, the Applicant’s ties to Australia weigh in favour of revocation, and the Tribunal gives them moderate weight.
(b) Impact on Australian business interests
Clause 9.4.2(3) requires decision-makers to consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence to suggest that this consideration is relevant to the Applicant.
Other Considerations
The considerations stated in cl 9 of Part 2 are not exhaustive. However, the Applicant has not raised any other matters for consideration.
Conclusion
In Gaspar v Minister for Immigration and Border Protection,[75] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[75] [2016] FCA 116, [38].
Factors against revocation
The Applicant has been involved in serious criminal conduct and the risk of him reoffending if released into the community is high. He represents an unacceptable risk of harm to members of the community. The protection of the Australian community from harm, as a result of criminal activity or other serious conduct by non-citizens, is a primary consideration under Direction 90.
Clause 8.1(1) provides that:
…decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal gives substantial weight to the consideration of protecting the Australian community from harm and this weighs heavily against the revocation of cancellation of the Applicant’s visa.
Similarly, the expectations of the Australian community are a primary consideration. However, in assessing the overall question of whether there is another reason to revoke the cancellation of the Applicant’s visa, the Tribunal is not necessarily bound by the expectations of the Australian community.[76] In appropriate cases, the Tribunal may make a decision which does not give effect to the deemed community standard in cl 8.4 of Part 2 of Direction 90.
[76] FYBR v Minister for Home Affairs [2019] FCAFC 185, [79].
In this case, however, the Tribunal is not minded to depart from the weight cl 8.4 of Part 2 of Direction 90 generally provides. The Applicant has clearly acted contrary to the expectations of the Australian community by failing, repeatedly, to obey Australian laws while in Australia across a broad range of criminal conduct. He has demonstrated a consistent disregard for the law and for those that enforce it. This consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
The third primary consideration weighing against revocation is that aspects of the Applicant’s conduct has constituted family violence as defined. The conduct was serious and involved both of his partners. The Tribunal gives this consideration substantial weight.
Factors in favour of revocation
There are three considerations in favour of revocation.
First, the Tribunal is satisfied that the best interests of the Applicant’s five children, which is a primary consideration under Direction 90, favours the revocation of the cancellation of the Visa. However, for the reasons discussed, the Tribunal attributes limited weight to this consideration.
Secondly, the Tribunal is satisfied that the Applicant would face some limited impediments in establishing himself and maintaining basic living standards in Fiji in the context of what is generally available to other citizens of that country and this factor weighs marginally in favour of revocation, but the Tribunal gives it little weight.
Thirdly the Applicant has established ties to Australia, principally through his children, which weigh in favour of revocation, and the Tribunal gives this consideration moderate weight.
Conclusion
Clause 7(2) to (3) of Part 2 of Direction 90 provide:
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[77]
[77] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 90 which provide the framework for decision making under s 501CA of the Act. Those principles include:
(1) Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns.
Weighing the considerations, the Tribunal is satisfied that the considerations against the revocation of the cancellation of the Visa outweigh the considerations in favour. Accordingly, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Member R West

.......[sgd]...........................................
Associate
Dated: 2 July 2021

Dates of hearing: 22 & 23 June 2021

Applicant: Michael Wilson

Advocate for the Respondent: Sarah Thompson

Solicitor for the Respondent: HWL EBSWORTH LAWYERS

[2021] AATA 2059

2 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal

Dates of hearing:	22 & 23 June 2021
Applicant:	Michael Wilson
Advocate for the Respondent:	Sarah Thompson
Solicitor for the Respondent:	HWL EBSWORTH LAWYERS