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

Alagaelua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1776 (15 June 2020)
Division:GENERAL DIVISION
File Number: 2019/8703
Re:Anetone Alagaelua
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:15 June 2020
Place:Melbourne

The Tribunal affirms the decision of the respondent dated 19 December 2019 not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..............[sgd]..........................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under s 501- substantial criminal record – whether cancellation should be revoked – Ministerial Direction 79 – primary considerations – other considerations – decision under review affirmed
Legislation
Migration Act 1958
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
15 June 2020
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent on
19 December 2019 to not revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the “visa”).
The hearing in this matter was held on 16 and 17 March 2020. The applicant was self-represented. The respondent was represented by Mr Adam Ray of Clayton Utz.
On 23 March 2020 the Tribunal decided to affirm the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
The following factual background information is drawn substantially from the respondent’s Statement of Facts Issues and Contentions, the G-Documents and also the direct evidence of the applicant and was not in dispute between the parties.
The applicant is a 25-year-old citizen of New Zealand who was born in Samoa and first arrived in Australia in January 2006 as an 11-year-old. He departed Australia in August 2008 and then returned to Australia in March 2011 and has resided in Australia since that time.
The applicant was adopted by Australian parents who live in Queensland.
Despite his New Zealand citizenship, the applicant has never resided in New Zealand.
The applicant completed secondary schooling through to year 12 at Woodcrest State College in Queensland before moving to Melbourne and commencing employment as a bricklayer between 2012 and 2016.
The applicant met his current partner Ms Aruna Faleleu in 2013 and they have been in a relationship since that time. The couple have two children.
On 9 December 2016 the applicant was convicted in the County Court of Victoria of one count of intentionally cause serious injury, two counts of intentionally cause injury and three counts of robbery (the “2016 offences”). As a consequence of the convictions the applicant was sentenced to a total term of imprisonment of five years with a non-parole period of three years.
On 12 July 2018 the applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (the Act). The applicant subsequently made representations to the Department in accordance with the Act. After considering those representations, on

19 December 2019 the delegate of the respondent made a decision under section 501CA(4) of the Act to not revoke the mandatory cancellation of the applicant’s visa. It is that decision which is the subject of this review.
ISSUE
In his evidence to the Tribunal the applicant conceded that as a consequence of his 2016 offences he had been sentenced to a term of imprisonment for in excess of 12 months. Accordingly, the Tribunal is satisfied that the applicant does not pass the character test under section 501(6)(a) of the Act as a result of having a substantial criminal record.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the mandatory cancellation decision, having regard to all relevant considerations, including those set out in Part C of Direction No. 79 which was issued under section 499 of the Act on 20 December 2018 (“the Direction”).
CONSIDERATION
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction provides that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should 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.
In considering the risk to the Australian community, the Direction provides that the Tribunal 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In the course of his direct evidence to the Tribunal the applicant conceded that he had been convicted of the 2016 offences having pleaded guilty to them.
Based on the remarks of the sentencing Judge, the incidents giving rise to the 2016 offences occurred in the early hours of Sunday, 15 May 2016 and can be summarised as follows:
·the applicant and his accomplices were involved in a series of separate assaults and robberies following a night of drinking at the local rugby club.
·The first assault involved in 18-year-old man who was walking alone outside a nightclub. The applicant and his accomplices approached the man and assaulted and robbed him in an alleyway next to the nightclub. The victim was punched to the head by one of the applicant’s accomplices and while he was lying on the ground the applicant kicked the victim in the head rendering him unconscious. The applicant took the victim’s iPhone and wallet. The applicant and his accomplices then fled to the applicant’s car. The victim was subsequently found lying face down in a pool of blood, unconscious. He was transported by ambulance to hospital and as a result of the incident suffered nasal fractures, fractures to his jaw and a fractured eye socket. He underwent surgery for the nasal jaw fractures and a titanium plate and screws were inserted into his face.
·The second and third assaults, which occurred shortly after the first incident, involved an assault and robbery of two men who were walking together on a nearby footpath. The applicant and his accomplices were driving along the road and observed the victims walking and then pulled over about two metres ahead of them. A conversation took place and the two victims turned to leave but, without warning, the applicant punched one of the victims to the right side of his head causing him to stumble. The other victim then sought to come to the first victim’s defence and a further struggle ensued during which the applicant and his accomplices punched the second victim and dragged him into a nature strip. One of the applicant’s accomplices continued to hit the second victim until he was unconscious. The applicant and another of the accomplices then punched the first victim about two or three times to his shoulder and head causing him to lose balance and fall and then continued to punch him with either the applicant or the accomplices kicking him in the ribs. The applicant then demanded that the victim give him items from his pockets and the applicant and his accomplices then fled to their car.
While the applicant accepted that the description of the offending in the sentencing remarks was generally accurate he did contest a number of specific details in the description. For example, in the sentencing remarks there is a reference to the victim of the first incident apologising to the applicant and his accomplices after having been punched and fallen to the ground and before the applicant then kicked him in the head knocking him unconscious. The applicant claimed in his evidence that the victim had not apologised to him. He also disputed that he had been the one who had taken the victim’s wallet and iPhone but he agreed that they had been found in his car. When asked what explanation he could provide for the discrepancy between the description of his offending provided by the sentencing Judge after his plea of guilty and his own account he told the Tribunal “I don’t know. I can’t remember”.
A further discrepancy that emerged through the course of the applicant’s cross-examination was the extent to which he had been drinking on the night in question. There was evidence before the Tribunal that in his initial police interview the applicant had indicated that he was not drunk at the time of the offending and the sentencing Judge accepted that the applicant had only “had a few drinks” and was intending to drive before heading out to a party with rugby friends. However, the sentencing Judge goes on to say that “it is unclear how much alcohol you consumed on the night, but it was neither put that you were intoxicated, nor used as a matter of mitigation, which in any event would not have been so regarded. Indeed, the effect of alcohol upon you was said during the plea to have been known to you as a fact that disinhibits your behaviour and brings out your aggressive side. This is aggravation, not amelioration”.
In his evidence the applicant told the Tribunal that he was “pissed” and had had lots of drinks. He told the Tribunal that he typically drinks rum and coke. When asked how many drinks he had consumed prior to the offending he responded by saying “more than five” but was vague beyond that number. When asked how he explains the discrepancy between the account of the sentencing Judge and his evidence before the Tribunal, he told the Tribunal “I told them what I could remember…Maybe I didn’t say it right”. The applicant went on to tell the Tribunal that he was concerned when he was being interviewed by police that he might sound like an alcoholic and he was embarrassed by the amount he had drunk.
The applicant told the Tribunal that during the period in question he was drinking more than five drinks in an evening about once every fortnight. He told Tribunal that sometimes during that period he would have more than 10 drinks. The applicant told the Tribunal that when he drinks it makes him relax and sometimes he becomes more aggressive and can lose control of his behaviour. The applicant told the Tribunal that he had considered himself an alcoholic when he was young but that he had stopped drinking to excess on a regular occasion when he was about 19 years old in order to be able to focus more on his rugby. He told Tribunal that sometimes his drinking had caused him to do things that he regretted. The applicant told Tribunal that he would fluctuate between periods of discipline where he was focusing on his rugby and not drinking at all and other periods where he would drink more than five cans and sometimes more than 10 cans on an occasion about once every fortnight. He also said that he would do so occasionally, on very special occasions such as a rugby celebration or a birthday. He told the Tribunal that he didn’t believe that he had an ongoing problem with alcohol and he felt confident that he could stop drinking at any time, for example, if he was focused on something, such as his rugby.
The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind the applicant’s conviction and re-examine the facts upon which it was based.[2] However, there is nothing that prevents the applicant from presenting to the Tribunal matters that give context to those convictions.
[2] See Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 at [40] and HZCP v Minister for Immigration and Border Protection [2018] at [78].
The Tribunal accepts that the applicant drank a substantial amount of alcohol leading up to his offending but does not accept that he was so intoxicated that the he was unaware of what he was doing or was unable to control his behaviour. The Tribunal accepts the conclusion of the sentencing Judge that the applicant’s drinking on the night in question should be viewed as an aggravating factor rather than a mitigating one.
The Tribunal found the applicant’s contesting of details of the description of the offending included in the sentencing remarks entirely unpersuasive. The applicant was not able to provide any rational explanation for the discrepancy or why he had not disputed the details he was now contesting at the time of the sentencing. When asked why he had not done so the applicant responded “I don’t know. My lawyer was dealing with it. I wasn’t really listening”.
Based on the evidence before it, the Tribunal accepts the description of the applicant’s offending as set out in the sentencing remarks in its entirety.
The Tribunal is satisfied that the applicant’s offending involves extreme, unprovoked, gratuitous violence against completely innocent members of the community. In the Tribunal’s view it is extremely serious offending.
This conclusion is further reinforced by the very substantial term of imprisonment the applicant was sentenced to, despite being a first-time offender.
The conclusion is also supported by the comments of the sentencing Judge where he states:
Acts of wanton violence like yours, particularly cowardly and unprovoked assaults, are far too frequent in the life of our community, and cause trauma and injury to those directly affected as victims, but also because consternation and fearful dismayed to the community.
… The gravity of the offending is one which is high, because perpetrated on utterly vulnerable victims, unprovoked in any shape or form, random and severe, and enacted at night, in public places, in a group company upon individuals, by the use of kicks, accompanied by theft of personal property as a secondary offence, premeditated and planned, even if not long-standing time, but agreed tacitly or explicitly.
In addition, the Tribunal accepts the respondent’s contention that the applicant’s offending involved repeat offending in the sense that it involved multiple incidents. As the respondent described in its Statement of Facts, Issues and Contentions:
After having brutalised one victim, the Applicant does not appear to have been remorseful or afraid; rather, he played a leading role in setting up and executing the next assault. As the sentencing judge remarked, “delictum iteratum gravius est’ - a crime that is repeated is most serious.
The Tribunal is satisfied that should offending of the type the applicant engaged in 2016 be repeated it has the potential to cause very serious physical and psychological harm to members of the Australian community, including innocent members of the community.
The Tribunal now turns to the question of risk of the applicant reoffending.
Other than the 2016 offences the applicant has no other record of criminal offending of any kind. The applicant’s evidence to the Tribunal was that he had never behaved in this manner before and that generally throughout his life he has endeavoured to be a good role model for his children, broader family and the rest of the community.
There was evidence of the applicant having made some contribution to the community including through his employment as well as his activities as a rugby coach and supporting younger family members in pursuing their rugby dreams and also through his church. There were a number of letters of support from both family and friends which describe the applicant’s strong love and affection for his family and which portray the applicant as a person of generally good moral character.
The Tribunal acknowledges that the applicant pleaded guilty to his offences and also expressed remorse for them. He told the Tribunal that he is ashamed of his behaviour on that evening. This factor, however, must be qualified by what was, in the Tribunal’s view, an attempt by the applicant to downplay certain aspects of his offending including by suggesting that he was not primarily responsible for the taking of certain items from the victims.
The applicant told Tribunal that he was determined not to reoffend again. He noted that this was the first time he had ever been in jail and he wanted to have a chance to prove himself and get a second chance at life.
The Tribunal accepts that the applicant has made some effort to rehabilitate himself including by undertaking individual counselling sessions as well as completing various behavioural, addiction and vocational courses relevant to his offending. Those courses include “Violence Intervention Program”, “Moderate Intensity Violence Intervention Program”, “24 Hour Drug and Alcohol Program”, “Talking Change”, “Coping Inside-Managing Worry”, and “Courageous Communication”.
There was evidence that the applicant has undertaken the “ReLink Program” through the prison which involved the creation of a transition plan which addresses the applicant’s support needs in transitioning back into the community. The program coordinator provided evidence that the applicant had been particularly engaged in undertaking the program and also stated that the applicant would be eligible for post-release support.
In addition, the applicant has undertaken vocational training while in prison including “Certificate II in Cleaning Operations”, “Certificate II in Kitchen Operations”, “Food Handlers”, “Access to Vocational Pathways”, “Certificate I in Construction”, and “Stop Slow (Roadside Traffic Controller)”. In his direct evidence to the Tribunal the applicant told the Tribunal that he had learned “a big lesson” and stated that he believed that the behavioural courses he had undertaken had taught him that drinking causes him to be more aggressive.

The evidence before the Tribunal was that the applicant has generally been of good behaviour while in prison. In addition there was some evidence of the applicant undertaking employment while in prison and also providing mentoring for other young island offenders.
There was evidence before the Tribunal of strong protective factors which would assist the applicant in his transition back into the community and help mitigate against the risk of reoffending, including the strong support of his partner, broader family and friends. It was clear to the Tribunal that the applicant has an extensive network of close family members in Australia including his partner, Ms Faleleu, adoptive parents, siblings, uncle, aunts, cousins, nieces and nephews. In addition, it is clear that the applicant has the support of a significant broader friendship group.
The Tribunal accepts that the applicant is a family orientated person and that he has made representations to his family members about his determination not to reoffend and that he feels a genuine obligation to do the right thing by them. He told the Tribunal that he recognises that his previous behaviour has had an adverse effect on his relationship with family members at times and it is clear to the Tribunal that this is something the applicant is very determined to avoid again in the future.
The applicant acknowledged the particularly significant impact his offending and subsequent incarceration has had on his partner who looks after their children with the assistance of her mother. The applicant made clear to the Tribunal that he was determined not to let her down again in future. The Tribunal accepts that the applicant’s stated intention in this respect is genuine and heartfelt.
The applicant has the responsibility of his own children and the Tribunal is satisfied that the applicant feels a very genuine sense of responsibility to his children. In addition, the Tribunal is satisfied that the applicant has demonstrated a strong commitment to his employment, church and also his sporting clubs and that these have the potential to be additional protective factors in his life. However, this must be qualified by the fact that his previous exposure to his rugby club associations had been a factor in him drinking to excess on previous occasions and friends from his rugby club had also been his co-offenders in the commission of the 2016 offences.
There was evidence before the Tribunal of the applicant’s positive plans for the future if released back into the community. He told the Tribunal that he wanted to reunite with his family and be there to help support them, including financially. He told the Tribunal that he intended to take up a job in bricklaying and if necessary might move interstate for such an opportunity. The Tribunal also acknowledges the offers of employment made to the applicant by both his brother James and also his cousin Mr Sam Vaivao who operates his own bricklaying business. The Tribunal accepts that those offers of employment are genuine.
When asked in cross-examination why the Tribunal should be confident he will not reoffend the applicant told the Tribunal that he has quit alcohol and that he wants to quit permanently and that he is determined to do better by his family. He told the Tribunal that he wanted to be a good role model for his children. He told the Tribunal “I have lost time with my family” and that he regrets having done so and has learned his lesson. The applicant told the Tribunal that this was the first time he had been in jail and that he hasn’t yet had a chance to prove himself. He told the Tribunal “I believe there is no risk”.
The Tribunal accepts that the applicant has a genuine desire to not reoffend and to make the most of any second chance he might be given and also that there are a number of factors that mitigate, to some degree, the risk of the applicant reoffending. Those factors include the applicant’s demonstrated remorse, the strong support of his family and friends and the applicant’s determination not to let them down, the courses he has undertaken in an attempt to reform himself, his record of good behaviour while in prison, his plans for his transition back into the community, his positive plans for the future, his good prospects of future employment and his desire to be a good role model for his children. The Tribunal also acknowledges that the 2016 offences were the applicant’s first and only offences. However, against these mitigating factors there are a number of countervailing factors that are of serious concern to the Tribunal when assessing the risk of him reoffending.
First, the Tribunal accepts the respondent’s contention that while there may exist significant protective measures in the form of family and friends and secure employment opportunities, those factors existed prior to the applicant offending in the first place. The Tribunal accepts that the applicant has been forced to experience the hardship of prison for the first time and that this experience has no doubt caused him to reflect on the impact his offending has had for himself as well as his family and friends. Nonetheless, his apparent willingness to engage the unprovoked and gratuitous violence involved in his 2016 offences notwithstanding the existence of such strong networks of love and support leaves a serious question in the mind of the Tribunal about the extent to which these protective factors can be relied upon to avoid a repeat of such behaviour in the future.
While the Tribunal accepts that the applicant has a broader history of prosocial behaviour it remains particularly concerned about what appears to have been an element of premeditation in the applicant’s offending conduct. In his sentencing remarks the sentencing Judge states:
Mr Alagaelua, at your interview you told police that you had “got to bored after a drink up and thought stupid stuff”. On the way home, you had a conversation about doing “something fun”. You said “We got bored and asked ‘What do we want to do now? Do something fun’, and I was - they came up with the idea. They got to agree with me, so we went and did it. Just hitting people, just anywhere we see someone. We all had it in our mind that the first person who was ever going to come through here is going to get it, and we didn’t choose anyone who it’s gonna be, we were just waiting for the first one.
In his own written submissions to the Department the applicant lends further weight to there being an element of premeditation in his offending. The applicant stated:
Everything started off as just letting off steam but ended up leading to much more as we were all trying to outdo each other. Someone suggested that we go and rob somebody. At first I was hesitant, but ended up going along with the others. I was highly intoxicated when I made this poor choice - I realise this is not an excuse.
The Tribunal is satisfied that the assaults did involve an element of premeditation. This is particularly concerning to the Tribunal. In his evidence the applicant sought to diminish this aspect of the offending by suggesting that it was not his idea and that he had only participated in it due to his high level of intoxication and a “lapse in judgment”. The Tribunal does not accept that contention. While the Tribunal accepts the applicant had been drinking it does not accept that he was so intoxicated he did not know what he was doing. Nor does it accept that it was simply a momentary lapse in judgment. The applicant made a proactive decision to participate in the offending and that choice lead to very serious consequences for his victims.
In addition, the Tribunal remains particularly concerned about the applicant’s attitude towards alcohol. The applicant’s evidence was that he does not have an issue with alcohol because anytime he wishes to stop drinking he is able to do so. The Tribunal does not accept this evidence. The Tribunal is satisfied, based on all the evidence before it, that the applicant has a real issue with alcohol in that he is inclined to drink to excess. Further, the Tribunal is satisfied that when he does so it makes him more prone to aggressive behaviour. Based on the whole of the evidence, the Tribunal is not satisfied that the applicant is able to control his consumption of alcohol to the extent that he has represented. Notwithstanding the fact that the applicant has had periods where he did not drink, it is clear that on occasions he has lapsed back into a pattern of drinking which could be described objectively as excessive. While the Tribunal accepts that the applicant has not consumed alcohol while in prison and has undertaken a number of courses which have assisted in his understanding of alcohol abuse it does not accept that his issues with alcohol are fully resolved. The applicant’s suggestion that he can control when he drinks to excess is strongly suggestive of a lack of insight into the full extent of his issue with alcohol. The Tribunal is satisfied that there continues to be a significant risk of the applicant engaging in excessive drinking again in the future and that this in turn presents a real risk of him repeating behaviour consistent with his 2016 offences.
In addition, in assessing this consideration the Tribunal has been very mindful of the principle set out in paragraph 6.3(4) of the Direction which states:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, then any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
The Tribunal is satisfied that the applicant’s offending is in the category of seriousness contemplated by paragraph 6.3(4). The Tribunal is satisfied that the risk of the applicant reoffending is real. Having regard to the seriousness of the applicant’s offending and the very significant consequences that could flow to members of the Australian community if it were repeated, the Tribunal is satisfied that the risk to the Australian community is unacceptable.
For these reasons the protection of the Australian community consideration weighs very heavily against a decision to revoke the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
The applicant has two minor children, AL aged 5 and AZ aged 4. The children are currently being cared for by their mother, the applicant’s partner, Ms Faleleu.
The applicant’s evidence was that, if released back into the community, it was his intention to reside with his partner together with his children and maintain a shared parental responsibility for them. The applicant’s evidence was that he has a strong bond with his children. In his representations to the Department the applicant stated that:
...from the time of her birth [AL] brought a positive influence into my life, I would hold her in my arms and she look up at me and smile, it was contagious, we would spend hours on the floor playing cat and mouse her in her walker and me on my knees, she had me wrapped around her finger and she knew it. Anything she wanted or needed I would make sure she had it. The precious time I have missed with her growing into a little princess makes me ache deep inside.
And further:
I remember holding [AZ] in my arms and he would look up at me like I was his superhero.
The evidence before the Tribunal was that the applicant has continued to maintain regular contact with both of his children by phone and also by way of regular prison visits.
The applicant’s evidence is that in the event that he is required to relocate to New Zealand he expects that his partner and children will remain in Australia. His evidence was that in the event that he is required to relocate to New Zealand and the children remain in Australia it will have a big impact on them because he will not be able to be there to support them financially and emotionally as they grow up. He stated that his children are a very important part of his life and he is very conscious of the toll his current separation has had on their lives. He stated that any further separation would possibly destroy his relationship with them.
The applicant told the Tribunal that Ms Faleleu currently works and that she is generally in good health.
Ms Faleleu told the Tribunal that the applicant is a “good father” who hung out with the wrong crowd. In her written statement to the Tribunal Ms Faleleu stated that ‘…raising our children alone has been the most difficult time. Visiting Anetone has never gotten any easier as the children miss him so much and cry after every visit.’
Ms Faleleu told the Tribunal that she had not decided whether she would go back to New Zealand if the applicant was required to relocate there but that she thought that she would stay in Australia. She stated that while she could go back to New Zealand given that she is a New Zealand citizen she felt that it would be hard for both herself and the children to do so. Ms Faleleu told the Tribunal that in the event that the applicant returned to New Zealand and she remained in Australia that she could look after the kids by herself but that it would be very sad for all of them. She told the Tribunal that she wanted the applicant to stay in Australia so that they could all be a family together in Australia and he would be able to help look after the kids.
On the basis of the evidence before it, the Tribunal is satisfied that the applicant has a genuine loving and parental relationship with his children and that he remains committed to maintaining that parental relationship in the event that he is released back into the community. The Tribunal is satisfied that the applicant is committed to playing a positive parental role in their lives and that he has a genuine capacity to do so. While the applicant’s offending has clearly had an impact on his children in the sense that he has had limited face-to-face contact with them during his period of incarceration, there is no other evidence of his offending impacting them directly in any way.
In the event that the applicant is required to relocate to New Zealand the Tribunal accepts that the most likely outcome is that the applicant’s partner and the two children would remain in Australia. The Tribunal is satisfied that in those circumstances the likely separation would have a significant adverse impact on each of the children as a consequence of the difficulty that would exist in the applicant maintaining a strong parental relationship with them. This conclusion is tempered to some limited degree by the apparent willingness and capacity of the applicant’s partner to maintain a parental role in the lives of the children in the absence of the applicant. It is further tempered to a limited degree by the fact that its likely the applicant’s partner together with the children will travel to New Zealand from time to time to visit, particularly given Ms Faleleu’s pre-existing connection to New Zealand including having family there.
In all the circumstances, the Tribunal is satisfied that it would be in the best interests of both AL and AZ for the cancellation of the applicant’s visa to be revoked.
In addition to his own children, there was evidence before the Tribunal relation to the applicant’s relationship with his nieces and nephews as well as some other children who are Australian minors with whom he has an ‘uncle-like’ relationship. Those minors include:
(a)AV, aged 17;
(b)SV, aged 14;
(c)KV, aged 7;
(d)EF, aged 6;
(e)CA, aged 1;
(f)MAP, aged 9;
(g)MIP, aged 6;
(h)MNP, aged 4;
(i)FF, aged 6;
(j)TF, aged 5;
(k)RA, aged 3;
(l)CA, aged 8; and
(m)JA, aged 15;
The applicant told the Tribunal that family was very important to him and he had developed a very strong relationship with all of his nieces and nephews. The applicant gave direct evidence in relation to a number of his nieces and nephews. He described how proud he was when he became an uncle for the first time when his sister, Mele Paongo, had her first child. The applicant described spending a lot of time with Mele’s eldest son, MAP, “taking every opportunity to spoil and take him out with his Dad fishing or just going to indoor parks and such, we share a lot of fond memories and cannot wait to be released from prison to make up for lost time with this little man”. The applicant described that when MAP’s little brother MIP was born he was so happy and proud “you would think they were my babies to”. The applicant described not yet having met Mele’s daughter MNP but noted that she has already developed a strong connection with his own children.
The applicant gave evidence in relation to the strong connection he has with two other nieces, AV and SV. The applicant described them as his nieces but in fact they are the children of his cousin Sam Vaivao. The applicant described his relationship with Sam as being akin to a brother relationship. The applicant described spending as much time with AV and SV as he was able to and that he made a special effort to make it to their birthdays and would also occasionally take them to the park, shopping or fishing. The applicant described helping AV with her rugby training and taking her out to games and training and helping her to be confident. The applicant also described his connection to KV who is the little brother of AV and SV. He described KV as “one of those kids that is always smiling and giggling and have a lot of fond memories chasing him around the backyard in the summer months”.
The applicant described the strong connection he has with EF who is the son of his partner’s brother. The applicant described becoming very close to EF as he “spent a lot of time with his parents”. He described treating EF as one of his own “often picking up and take him out on play dates with my partner”. The applicant stated “I really do miss him and look forward to making up for lost time becoming a good positive role model in his life”. The applicant described still speaking to him regularly on the phone and receiving visits from him a number of times in prison. The applicant noted that he is not yet had the opportunity to meet EF’s younger brother CA. EF’s mother Sharon, gave evidence to the Tribunal and described the applicant’s relationship with EF as being like “father and son”. She told the Tribunal that the applicant would take EF out for activities and that he displayed a very loving and nurturing nature towards him. Sharon told the Tribunal that if the applicant was forced to relocate to New Zealand it would have “a big impact” on EF.
The applicant also described the strong connection he has with FF and TF who are his “niece and nephew” through his partner’s sister. The applicant stated that:
Like most of my Nieces and Nephews I have tried my best to stay in contact seeing and receiving letters and I’ve been lucky to speak to them often when I’ve called home from prison and they were visiting my partner and children’s house at that time. I have been lucky enough to watch the little ones grow on a daily basis up until the time of my incarceration.
The applicant described his desire to also develop a strong relationship with RA and CA who are the children of his brother James Alagaelua. RA and CA were born after the applicant was incarcerated. The applicant stated:
I look forward to future letters and phone calls once they are of age. And of course making up for lost time in becoming a positive role model to them and to all of my family once I’ve served my time and released.
In addition, there was evidence of the applicant having a strong connection to his cousin Sam’s younger brother, JA, who is aged 15. The applicant described having developed a very strong bond with JA while living with Sam and his mother, the applicant’s aunty. The applicant described spending time with both Sam and JA doing various activities together including going fishing.

The Tribunal is satisfied that the applicant has a very genuine affection for all the members of his family and has taken considerable interest in the lives of his “nieces and nephews”. The Tribunal is satisfied that in the event that the applicant is required to relocate to New Zealand his capacity to maintain strong relationships with his nieces and nephews will be significantly compromised because of the likelihood of him having extremely limited face-to-face contact. The Tribunal is satisfied such an outcome would have an adverse impact on each of the children. That impact would be particularly significant for those of the children who have met and developed a relationship with the applicant as described above. The Tribunal acknowledges that the impact would be particularly significant for EF, given that the evidence indicates the applicant had a particularly strong connection to EF.
For these reasons, the Tribunal is satisfied that it is in the best interests of each of the applicant’s “nieces and nephews” that the cancellation of the applicant’s visa be revoked. This conclusion is tempered to a degree by the interrupted nature of the applicant’s relationship with his nieces and nephews, acknowledging that in some cases the applicant has not actually physically met the children. It is also tempered by the fact that each of the children have their own parental carers and there is no suggestion that the applicant has assumed or is likely to assume a parental responsibility in respect of them.
There was also evidence that the applicant’s sister, WA, is aged 17. The Tribunal accepts that the applicant has a genuine love and affection for his sister and that in the event the applicant was forced to relocate to New Zealand it would adversely impact their relationship given the difficulty of maintaining face to face contact. The Tribunal is satisfied that it is in the best interests of WA for the applicant’s visa cancellation to be revoked. This is tempered by the absence of any detailed information regarding their relationship, the fact that WA will very shortly be 18 and that the applicant does not have a parental relationship in respect of her.
For these reasons, the best interests of minor children in Australia consideration weighs strongly in favour of the revocation of the cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[3] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs.[4] Consistent with the case law, the Tribunal accepts that in applying the expectations of the Australian community consideration:
·It is not for the Tribunal to make an assessment for itself as to the expectations of the Australian community in any particular case, but rather the task of the Tribunal is to have due regard to the Government’s stated views regarding the expectations of the Australian community as set out in the relevant clause in the Direction.
·In determining what the Government’s stated views are, regard should be had to the words set out in the Direction including, in particular, paragraph 13.3(1).
·In determining the weight to be given to the consideration, the Tribunal must be mindful of the fact that it is a primary consideration. The Tribunal should also have regard to the nature of the offences that have been committed, the risk the applicant poses to the Australian community and other factors relevant to any character concerns that exist with respect to the applicant.
[3] [2017] FCA 1466.
[4] [2019] FCAFC 185.
Ultimately, the weight to be given to the consideration and whether it should outweigh other relevant considerations is a matter for the decision-maker to determine in the exercise of their discretion. In this sense, while generally the consideration is likely to weigh against the applicant, in some circumstances it may not be “decisively so”, and there may well be circumstances that could exist where the consideration does not weigh against the applicant at all.
In applying this consideration, the Tribunal has had due regard to:
(a)the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 13.3(1) of the Direction;
(b)the principle set out in paragraph 6.3(1) referred to above; and
(c)the principle set out in paragraph 6.3 (5) of the Direction which provides that:
Australia has a low tolerance of any criminal or other serious conduct by people 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 other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
In weighing this consideration the Tribunal has been mindful of the fact that the applicant has lived in Australia for a significant portion of his life and has made some contribution to the community through his employment, church and sporting activities. However, the Tribunal also accepts that, objectively assessed, the applicant has not resided in Australia for a particularly long period of time and his current contribution to the community is tempered by his offending and the years he has now spent in incarceration. The Tribunal has also been mindful of the fact that other than the 2016 offences the applicant has no other record of criminal offending and has expressed significant remorse and regret for his offending.
Notwithstanding these mitigating factors, the applicant’s offending was extremely serious and involved unprovoked acts of gratuitous violence against innocent members of the Australian community. In addition, for the reasons set out above, the Tribunal is satisfied that the applicant continues to represent an unacceptable risk of harm to the Australian community.
For these reasons, the Tribunal is satisfied that this consideration weighs very heavily against a revocation of the cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
There was no evidence before the Tribunal that the applicant is owed non-refoulement obligations. Accordingly, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Strength, nature and duration of ties
The applicant has resided in Australia since migrating here in 2011 as a 16-year-old. The applicant also resided in Australia between 2006 and 2008.
There is no question that the applicant has developed very significant family and social ties to Australia. The applicant’s family in Australia is extensive and includes his adoptive parents, his three sisters, two brothers and an extensive network of aunts, uncles, cousins, nieces and nephews.
The Tribunal accepts that if the applicant is required to relocate to New Zealand it would have a very significant adverse impact on his partner, Ms Faleleu. They have been together for approximately six years. The applicant gave evidence of the strong relationship he has maintained with his partner notwithstanding his period of incarceration. The applicant told the Tribunal that he speaks to his partner every day and often multiple times a day. The evidence before the Tribunal was that Ms Faleleu has full custody of the applicant’s two children and has continued to care for them with the assistance of her mother while working full-time. The applicant’s evidence before the Tribunal was that his incarceration has had a very significant impact on Ms Faleleu both emotionally and financially. The applicant stated in his submission to the Department that:
Once released I want to make it up to her and the kids, I plan to work my backside off, and make sure they have whatever they need, and do it the right way like every other normal functioning family I want them to be proud again.
The applicant stated that he believed a decision forcing him to relocate to New Zealand would “devastate my family especially my partner and children”. He also stated “Unfortunately if I was to be deported I would have to leave my kids, Aruna my partner has no support people or close family members in New Zealand and I could not ask her to make that choice”.
In her evidence to the Tribunal, Ms Faleleu stated that prior to his incarceration the applicant had previously worked hard to help the family financially. She told Tribunal that following his incarceration she had stayed with her mother and taken on full-time work at a warehouse to help meet the family’s financial needs.
As noted earlier in these reasons, when asked whether she would travel back to New Zealand in the event that the applicant is required to relocate there Ms Faleleu told the Tribunal that she not yet made a decision but she didn’t believe she could go back to New Zealand because it would be too hard on her and the children. She told Tribunal while she has some family there she has not maintained close contact and she does not have a friendship network in New Zealand. Ms Faleleu told the Tribunal that while it would be hard she believed she would be able to manage continuing to care for the children and provide for the family financially in the applicant’s absence. She told the Tribunal that it would be sad and hard for the children if the applicant was forced to relocate to New Zealand. She told the Tribunal that “I want [the applicant] to stay in Australia so that we can have family in Australia and he can look after the kids”.
There was also evidence before the Tribunal from Ms Faleleu’s mother in relation to the impact the current circumstances have had for her also. She stated that since the applicant had been in prison and her daughter had needed to take on full-time work she had also had to give up work in order to assist in looking after the children.
The Tribunal accepts that a decision requiring the applicant to relocate to New Zealand would have a significant adverse consequence for the applicant’s partner (and indirectly also her mother). For the reasons already set out, the Tribunal accepts that the most likely outcome is that the applicant’s partner and the children would remain in Australia in the event he relocates to New Zealand. While the Tribunal accepts that the applicant’s partner has demonstrated a capacity to be able to care for the children and meet the family’s financial needs independently of him, there is no question that she would be assisted enormously both emotionally and financially if he were able to remain in Australia. In addition, in the event the applicant is required to relocate to New Zealand and Ms Faleleu remains in Australia, Ms Faleleu would continue to be physically separated from the applicant which in turn would put very significant ongoing pressure on their relationship.
There was also evidence before the Tribunal in relation to the significant impact a decision requiring the applicant to relocate to New Zealand would have for his adoptive parents. In his submissions to the Department the applicant described his parents reaction when learning of the risk of him being deported. He stated:
Aruna told me my Mother began wailing and my Dad walked out the back of the house to sit in his workshop, as he does when he is upset or grieving. I cannot bear the thought of having to move to another country and live out the rest of my life without them.
The Tribunal is satisfied that the applicant has a very genuine and close connection to all the members of his broader family. There was evidence of the strong relationship the applicant has maintained with his brother James, sister Mele and cousin Sam in particular. Mele told the Tribunal that in the event the applicant is forced to relocate to New Zealand the whole family will be “heartbroken”. Sam told the Tribunal that such an outcome would be a “massive loss” for the family as well as the broader community. The Tribunal accepts that a decision requiring applicant to relocate to New Zealand would have a very significant adverse impact on all of his family members given the difficulty they would all have in maintaining a close ongoing relationship with the applicant in the absence of regular face-to-face contact. In reaching this conclusion the Tribunal acknowledges that a number of the applicant’s family members indicated that they would do what they could to visit the applicant in New Zealand from time to time if he was required to relocate there.
There was also evidence before the Tribunal in relation to the significant social ties the applicant has developed in Australia through his educational activities, church activities, sporting activities and also through employment. The applicant completed secondary education through to year 12 and has undertaken a range of employment activities including as a bricklayer in Melbourne. The applicant has had a very significant involvement in rugby league. In his submissions to the Department the applicant notes that he played juniors all the way through to seniors for the Milton Bronco rugby league team. There was also evidence that the applicant has participated in coaching and mentoring of junior players in various rugby league teams. There was also evidence that the applicant had contributed to the community through his church related activity and that he had been ordained to the office of Elder in the Melchizedek Priesthood in The Church of Jesus Christ of Latter-day Saints.
The Tribunal is satisfied that the applicant has established very significant social ties to Australia through these activities and has made some contribution to Australia through his sporting, employment and church activities in particular. The Tribunal is also satisfied that the applicant has developed a strong emotional ties to Australia and considers Australia to be his home.
For these reasons, the Tribunal is satisfied that this consideration weighs significantly in favour of revoking the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact a revocation of the cancellation of the applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
The Tribunal accepts that the applicant has no established family or social ties to New Zealand and that the applicant is likely to face some challenges transitioning to a country that he is not familiar with and has never visited. These challenges will include initially securing accommodation and appropriate employment.
In his written submissions the applicant stated that he was particularly concerned about being deported to New Zealand due to its “high unemployment and homelessness rates”. He stated “people migrate from New Zealand in high numbers because it is very hard to survive and in turn makes people very depressed and suicidal”. The applicant provided no evidence in support of these contentions and the Tribunal rejects them.
The evidence before the Tribunal was that the applicant is of generally good physical health, although there was evidence that he suffers from a skin condition (diagnosed as sarcoidosis or lepromatous leprosy) and requires medication to treat the condition. The Tribunal accepts that the applicant’s condition does have the potential to impact his health more broadly if he fails to take the required medication including that skin lesions can flare up, his eyesight can become blurry and he can become lethargic and have difficulty breathing. The Tribunal is not aware of any reason why the applicant would be denied access to the medication he requires to effectively treat his condition if he were to relocate to New Zealand. The applicant told Tribunal that if he takes the prescribed medication his symptoms are manageable.
Given the absence of any significant language or cultural barriers and the applicant’s relative young age, relative good physical health and proven capacity for physical work, the Tribunal is satisfied that with the passage of time the applicant is likely to make that transition to day to day life in New Zealand successfully. The applicant indicated that if he was required to relocate to New Zealand it is likely that he would seek to take up employment as a bricklayer or some other form of labouring work. Given the applicant’s prior employment history, the Tribunal is satisfied that the prospects of the applicant securing employment in New Zealand would be relatively good.
The Tribunal accepts that it is unlikely that the applicant’s partner and children would relocate to New Zealand in the event he is required to relocate there and that therefore he would be required to undertake a transition to New Zealand life without the immediate, day-to-day support of his family. The Tribunal also accepts that there is likely to be an emotional impact on the applicant as a consequence of his physical separation from his broader family and also friendship networks.
For these reasons, the Tribunal accepts that this consideration weighs moderately in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) of the Act. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa.
In weighing the relevant considerations in this matter, the Tribunal has been particularly mindful of the impact a decision to affirm the cancellation of the applicant’s visa would have the applicant’s partner and family, including his children and nieces and nephews. It was clear to the Tribunal that the applicant is a very family orientated person and his love and affection for all of the members of his family is very genuine and heartfelt. It is also clear from the evidence before the Tribunal that that affection is reciprocated by his loved ones. There is no question in the mind of the Tribunal that a decision affirming the cancellation of the applicant’s visa would have a significant adverse impact on the applicant’s family for the reasons set out above. The adverse impact on his partner and children would be particularly significant.
The Tribunal has also been very mindful of the challenges that the applicant is likely to face in a transition into day-to-day life in New Zealand including securing accommodation and appropriate employment. Notwithstanding the absence of language and cultural barriers, given the applicant’s lack of familiarity with New Zealand it is reasonable to infer that he would find the transition challenging initially. However, given his relative young age and relative good health together with a proven capacity for hard physical work the Tribunal is satisfied that with the passage of time the applicant would be well-positioned to make the transition. Nonetheless, if the applicant is required to relocate to New Zealand the Tribunal accepts that it is very likely that he would do so in the absence of his partner and children as well as his broader family and friends and that he would be forced to meet the challenge of the transition without their immediate day-to-day support.

However, the Tribunal has also had regard to other significant countervailing considerations. There is no question in the mind of the Tribunal that the applicant’s offending was extremely serious and involved gratuitous, unprovoked violence against innocent members of the Australian community. Notwithstanding the fact that the 2016 offences are the applicant’s only offending, given the relevance of alcohol to that offending and the applicant’s history of drinking to excess and his own acknowledgement that drinking to excess can cause him to become disinhibited and more aggressive, the Tribunal is satisfied that there remains a real risk of the applicant reoffending again in a similar manner. The Tribunal is satisfied that risk of harm to the Australian community is an unacceptable one. Having regard to these considerations, the Tribunal is satisfied that the expectations of the Australian community favour of the applicant’s visa remaining cancelled. In all the circumstances of the case, the Tribunal is satisfied that these considerations are determinative.
Accordingly, the decision under review is affirmed.
DECISION
The Tribunal affirms the decision of the respondent dated 19 December 2019 not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]............................................
Associate
Dated: 15 June 2020

114.    Dates of hearing:

16 – 17 March 2020

Applicant:

115.    In person

116.    Advocate for the Respondent:

117.    Solicitors for the Respondent:

118.    Mr Adam Ray

119.    Clayton Utz

[2020] AATA 1776

15 June 2020

Key Legal Topics

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Immigration

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Judicial Review

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