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

Alesana and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3312 (31 August 2020)
Division:GENERAL DIVISION
File Number(s):2020/3472
Re:Sapoaga ALESANA
APPLICANT

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

DECISION
Tribunal:Member M Kennedy
Date:31 August 2020
Place:Adelaide

The decision under review is set aside and substituted with a decision revoking the original decision to cancel the Applicant’s visa.
.................[sgnd].......................................................
Member M Kennedy
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Lack of qualification to hold visa before cancellation – visa possibly not in effect at time of purported cancellation - Request for revocation of cancellation – Character test – Substantial criminal record – Violent offences – Protection of the Australian community – Expectations of the Australian community – Best interests of minor children – Other considerations – Strong ties to Australia – Decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
CASES
Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Afu and Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1469
Sillars and Minister for Immigration, Citizenship , Migrant Services and Multicultural Affairs [2020] AATA 994
REASONS FOR DECISION
Member M Kennedy

This matter relates to an application for review filed by the applicant on 9 June 2020. The decision under review is that of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant’s visa.
LEGISLATIVE FRAMEWORK
Section 501 of the Act provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa: section 501(3A) of the Act.
Where a visa has been cancelled under section 501(3A), the Minister has power, under section 501CA(4) to revoke the cancellation decision. That section permits revocation if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The criterion at subparagraph 501(3A)(b)(ii), upon which the mandatory visa cancellation may be revoked is the sole issue in this review: that is, whether I am satisfied that there is another reason why the original decision should be revoked. My approach to the consideration of that issue is the subject of a Ministerial Direction.
DIRECTION NO. 79
Section 499 of the Migration Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 79, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Alesana’s revocation request. I am to treat the following as primary considerations:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community
Other considerations must also be taken into account. They are:
(a)international non-refoulement obligations;
(b)the strength, nature and duration of ties;
(c)the impact on Australia’s business interests; and
(d)the impact on victims and the extent of impediments.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.
At the time of the mandatory cancellation of his visa, Mr Alesana held a Special Category (Class TY) subclass 444 visa.
At the time that visa was granted to Mr Alesana, there was only one criterion to be satisfied at the time of application: namely, that the applicant is a non-citizen who meets the requirements of paragraph 32(2)(a) of the Act. These requirements are relevantly that the Minister is satisfied (my emphasis) the applicant is ‘a non-citizen who is a New Zealand citizen and holds and has presented …a New Zealand passport that is in force.’
During the hearing, Mr Alesana had indicated that he believed his New Zealand citizenship was cancelled, but could not articulate exactly when or why this may have happened. In accordance with a direction from the Tribunal, the respondent made enquiries with New Zealand authorities. It is now established to my satisfaction that Mr Alesana is not a New Zealand citizen, has never been a New Zealand citizen, and the New Zealand passport he used to enter Australia was issued to him in error in 1994. I accept the indication to this effect from the Australian Consulate General in Auckland citing advice from the Department of Internal Affairs in New Zealand. I have no further information as to how this remarkable situation could have come about.
Mr Alesana accepts that he is a Samoan citizen.
The information indicating Mr Alesana was not a New Zealand citizen became available to the Respondent and the Tribunal after the hearing and a few days before the 84-day period within which the Tribunal must deliver a decision expired. I convened an urgent directions hearing on 31 August 2020 to discuss this information with the Respondent’s representatives and Mr Alesana. Mr Alesana was offered an opportunity to comment on the Respondent’s contentions regarding the extent of impediments if he was removed to Samoa. Noting the Respondent’s contention that he did not face substantial impediments as he has family that resides there and he speaks Samoan. I noted the further submission that although employment prospects in Samoa are not as good as they are in Australia he has the necessary skills required to be able to find work. Mr Alesana commented that if he is removed to Samoa then if something happens to his children he will not be able to travel back to Australia.
In advance of the directions hearing, the Respondent provided written submissions to the effect that as Mr Alesana was not a New Zealand citizen, he was not eligible and should not have been granted the subclass 444 visa he was granted on 6 November 1994. It was further argued that therefore the decision to cancel the subclass 444 visa on 3 October 2019, and the subsequent decision of the delegate to the effect that the power to revoke the cancellation was not enlivened were decisions made without statutory authority, and had no practical implication or consequence for the applicant.
The Minister contends that the Tribunal nonetheless has jurisdiction to review the delegate’s decision (citing Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21), although it may not disturb the operative effect of the decision. In other words, it is contended that the Tribunal only has power to affirm the decision under review.
Subject to a further complexity that may serve to justify the Minister’s contentions on a different basis, I am not inclined to entirely agree with the Minister’s contentions in this regard.
Under the scheme established by the Migration Act 1958 as to visas generally (section 65 of the Act), and perhaps more specifically as to special category visas (section 32 of the Act), criteria for the grant of visa are met upon the Minister’s satisfaction.
Decisions as to the grant of a visa are taken to be made by the Minister causing a record to be made of the grant of the visa. The visa is in effect, relevantly, as soon as it is granted, but can only be in effect during the ‘visa period’ for the visa.
It is not unusual that an immigration officer will be satisfied that criteria for the grant of the visa are satisfied and therefore lawfully grant the visa, but then at some future time it will be objectively established that information going to a criterion was not in fact correct. It is not the case in this scenario that the visa was never granted or never in effect, but rather such a situation will enliven a separate and distinct power elsewhere in the Migration Act to cancel the visa – for example pursuant to paragraph 116(1)(aa) of the Act. Such decisions are discretionary, with a detailed body of policy and law to be considered in their exercise.
I am not dealing with a review of a decision to cancel a visa pursuant to paragraph 116(1)(aa) on the basis that the ‘decision to grant the visa was based wholly or partly on the existence of a particular fact or circumstance and the fact or circumstance did not exist.’ No officer of the Respondent has purported to exercise the power in section 116 of the Act in respect of Mr Alesana. I set out this scheme to demonstrate why I am not minded to accept the Minister’s contentions that my power on the review is therefore limited. It is not the case in my view that a grant of a visa based on subsequently established incorrect information is a nullity.
In my view, the apparent fact that Mr Alesana was granted the visa subject to cancellation on incorrect information has no legal effect to limit the Tribunal’s power to review the decision as to whether, for example, there is another reason why the original decision (that the visa is cancelled pursuant to section 501(3A)) should be revoked. It would be open, in my view, to revoke the automatic cancellation of the visa, even if the visa was originally granted on the basis of satisfaction of facts that may now be established to be incorrect.
If the Tribunal did revoke the cancellation, it would then be open to the Minister to consider the question of whether the visa should be cancelled under other relevant provisions of the Act.
I have considered the authorities relied upon by the Minister in the supplementary written submissions to support the contention that, essentially, the Tribunal may and must proceed to review the decision but can reach only one outcome of affirming the decision under review. I consider Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1469 and Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 994 may be distinguished. In those matters, the applicants had not made representations to have the automatic cancellations of their visas revoked within the time prescribed by the Act. The mandatory legislative criteria required to be established to revoke the mandatory cancellation of the visa could not therefore be satisfied, regardless of what the Tribunal decided upon the consideration of the factors set out in Direction 79. In that scenario, the only correct legal conclusion was that the criteria to revoke the cancellation were not satisfied. I consider those matters to be quite different from the current situation, where no question arises about any of the criteria that must be established to revoke the cancellation, other than whether there is another reason why the original decision should be revoked.
I accept however that the Respondent would face practical difficulties in implementing a decision identifying that there is another reason why the original decision should be revoked. The more significant difficulty in my view arises from the apparent effect of cl.444.5 of Schedule 2 to the Regulations (in force at 6 November 1994), and section 68 of the Act.
Clause 444.5 of Schedule 2 to the Regulations provides that the subclass 444 visa is in effect ‘while the holder is a New Zealand citizen’. Section 68 of the Act provides that a visa is in effect (relevantly) as soon as it is granted, but can only be in effect during the ‘visa period’. The ‘visa period’ is defined at section 5 of the Act to be the period beginning when the visa is granted and ending (relevantly) when the visa ceases to be in effect. If Mr Alesana has never been a New Zealand citizen, or that status was subsequently cancelled or held to be void (I do not know the precise administrative character of the New Zealand decision in this regard), then arguably the visa ceased either immediately upon grant or upon the decision being made to cancel or void the citizenship. If I were to find that there is another reason why the original decision should be revoked, and set aside the decision under review, it would be akin to purporting to reinstate a visa that has ceased, or never been in effect.
I think the better view however, and in the limited time available to me to consider this obscure point I can find no guiding authority, is that some sort of determination must be made in order to practically recognise that a visa has ceased to be in effect, particularly where the prescribed cessation event is not in the nature of a time limit or specified day.
I consider that I must exercise my jurisdiction and review the decision without presuming the visa grant to be a nullity or accepting the submission that the automatic cancellation or primary decision was made without statutory power. I accept that it is possible that the Minister will give practical effect to the provisions of Schedule 2 at cl. 444.5 and section 68 of the Act and recognise that the visa is not in effect despite my decision which follows.
During the directions hearing I explained to Mr Alesana that his status in Australia appears to have become more complicated, and encouraged him to seek legal advice.
At the directions hearing I also disclosed to the parties that I was minded to set aside the decision under review in considering the merits of this case as they pertain to the Ministerial Direction. I now confirm that decision and give reasons.
Background
The applicant has a significant history of criminal offending whilst residing in Australia of some 60 offences, with his first recorded conviction registered when he was a juvenile in 1997. Violent offences begin appearing in his criminal history from 1999 when he was convicted of common assault. Mr Alesana was imprisoned for violent offending in 2004, drink driving offences in 2013 and for violent offending in 2019. The last term of imprisonment triggered the automatic cancellation of his visa when an intensive corrections order imposed for violent offending was converted to a sentence of full-time imprisonment upon a further violent offence being committed.
On 3 October 2019, the applicant’s visa was cancelled by a delegate of the Minister under sub-section 501(3A) of the Migration Act 1958 (the Act).
On 11 November 2019, the applicant made a request for revocation of the visa cancellation.
On 4 June 2020, a delegate of the Respondent decided not to revoke the cancellation under section 501CA(4) of the Act.
On 9 June 2020 the applicant applied for review.
Documentary evidence
I have taken into consideration the following documentary evidence:
·Section 501 G Documents exhibit G1-13.
·[Tender Bundle] 15 pages TB1 -TB6.
·[Applicant’s exhibits] including witness statements from Kylie Burge, Jim Rozakis and clinical records from International Health & Medical Services.
·Further written submissions and extract of communication between the Respondent’s Department and the Consul-General in Auckland.
Before considering the principles set out in the Direction and how they apply in these particular circumstances, I will provide a brief summary of the evidence I have received regarding the applicant’s background, family and life in Australia.
Mr Alesana is a 39 year old citizen of Samoa. Although arriving in Australia purportedly as a citizen of New Zealand, Mr Alesana has never resided there. Mr Alesana arrived in Australia in 1994 as a 14 year old, unaccompanied by a parent. Mr Alesana has not left Australia since this initial arrival.
Mr Alesana’s father has passed away. His mother lives in Samoa. Mr Alesana has siblings in Samoa, New Zealand and Australia. He is close to his older brother and his family (Mr Leotu, a witness) who also lives in Sydney. Some extended family live in Melbourne.
Mr Alesana has many children, both adult children and minor children. 12 children are mentioned at G4, folio 146, including adult children. Mr Alesana has a close relationship with some of the children, a less close relationship with others and no relationship at all with other children to the extent that he could not identify names or dates of birth during the hearing.
Mr Alesana has identified a de facto partner, Ms Burge. Both Mr Alesana and Ms Burge described their relationship as ‘on again and off again’ over many years. Ms Burge was a witness in the hearing. Mr Alesana has four children with Ms Burge: B (18), L (17), I (3), and M (2). Ms Burge has another child, Te (7) , who has a different father, but I accept that Mr Alesana has a parent-like relationship with Te. In the four to five years prior to the visa cancellation, I accept that Mr Alesana mainly lived in the same household as Ms Burge and these children, although there was a period of 6 months or so when he did not.
Mr Alesana has two children by Ms O: I and C (6 and 5). He currently does not know where they are, but told me he had regular contact with them prior to his incarceration.

M (14) and E (8) are not elsewhere listed in the papers before the Tribunal but were identified by Mr Alesana when the Tribunal had difficulty identifying the 12 Australian born children he had mentioned. E’s mother is ‘Ai’, and Mr Alesana said he had contact with Anita and E in the week before the hearing. M’s mother is ‘Jq’ and he last had contact with Jacqui and M 2 months ago.
Mr Alesana’s adult children are identified as Tm (23), and Mr Alesana mentioned in his oral evidence his son ‘D’ (24) with whom there has been a falling out and contact lost. There are a further 3 or 4 children according to Mr Alesana who he is aware of but has not met, and cannot identify.
Mr Alesana also told me he has a close relationship with his brother’s 8 children, 5 or 6 of whom are adopted from Samoa and 2 were born in New Zealand. 17 nieces and nephews are identified at G2 f.54-56.
Mr Alesana has also identified three grandchildren (Tm’s children).
The circumstances of what appears to be the applicant’s most serious offending based on the term of imprisonment imposed in 2004 are not really known to me. The offending involved an assault with an act of indecency, assault occasioning actual bodily harm, breaking and entering and contravening apprehended domestic violence orders. Neither Mr Alesana nor the victim of that offending, Ms Burge, would or could elaborate on the wider circumstances of that offending. I have no sentencing remarks for those matters, which I understand from Mr Alesana were dealt with at trial as he pleaded not guilty. I do have brief appellate remarks (G8, f.187) that are uninformative as to the circumstances of the offences. The court confirmed the convictions and sentence relating to the assaults (12 months) but quashed the sentences for the other offences (20 months with a non-parole period of 15 months) and substituted a sentence of a fixed term of 12 months. Mr Alesana could or would tell me almost nothing about the circumstances which saw him serve his first sentence of imprisonment. Ms Burge’s evidence about the circumstances of indecency and actual bodily harm that can be gleaned from the particular offences was vague and uninformative. All I know about the offending is that Ms Burge was the victim, and I infer it was serious from the sentence imposed.
The respondent primarily relies on more recent offending. In relation to that offending, the records available to me from the sentencing court are also uninformative as to the particular circumstances of the offending, but the respondent has obtained ‘fact sheets’ from the New South Wales Police. Mr Alesana told me that the Police allegations were not adjusted in any way prior to him entering guilty pleas, so I have taken into account the Police fact sheets as a way of informing myself about the circumstances of the offending.
On 6 November 2018, the local court dealt with Mr Alesana’s breach of an earlier bond placed on him in 2017 for an assault against a Ms Woodbury, which he had breached by a further assault on Ms Woodbury of 27 February 2018 for which further bonds with supervision were imposed. Mr Alesana breached those bonds by committing domestic violence offences against his daughter, B, and her friend. The Magistrate dealt with those matters by revoking all bonds and imposing an intensive corrections order for two years.
The respondent submits, and I accept, that the intensive corrections order is a custodial sentence amounting to a term of imprisonment of 12 months or more such that Mr Alesana has a “substantial criminal record” for the purposes of section 501(7)(c) of the Migration Act on that basis alone.
On 29 July 2019, Mr Alesana was dealt with by the same Magistrate for an assault on a stranger in the pub. For that offence, Mr Alesana was sent to gaol, and so the requirements necessary to trigger the mandatory cancellation of his visa were perfected as he was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of a state.
For the offences against Ms Woodbury, the fact sheets (TB2, folio 5 and onwards) state that Mr Alesana had struck Ms Woodbury’s neck with his forearm on 27 February 2018 in the course of a heated argument. On 17 March 2018, Mr Alesana woke Ms Woodbury up by playing loud music, and an argument ensued. Mr Alesana was overheard to threaten to kill the victim who then asked some friends who were present not to leave. The argument continued and Ms Woodbury asked Mr Alesana to leave. The victim commenced filming Mr Alesana on her mobile phone, and Mr Alesana hit the victim on her neck with his forearm.
The assault against a stranger that resulted in the revocation of the intensive corrections order took place on 1 June 2019. There was some sort of dispute between the victim and a third party over the use of a pool table at the Glenquarie Tavern. It is not clear how this involved Mr Alesana, but Mr Alesana became involved and head butted the victim. There was some dispute as to whether Mr Alesana also punched the victim. I think the Magistrate proceeded on the basis that Mr Alesana also punched the victim
A further statement of facts relates to an earlier incident of 1 March 2017 where the victim (known to Mr Alesana) was slapped by Mr Alesana in the bathroom of a hotel. The fact sheet does not purport to explain why this happened. This offence appears to have been referred to by the Magistrate when dealing with matters on 6 November 2018.
I now turn to the considerations under Direction 79.
Primary consideration: The protection of the Australian community.
When considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Furthermore, remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding and will not cause or threaten harm to individuals or the Australian community.
I am 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.[1]
The nature and seriousness of Mr Alesana’s conduct
[1] Direction No. 79, [13.1(2)] (hereafter referred to as D79)
In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, I am to have regard to factors including those set out in paragraph 13.1.1(1) of the Direction. The factors relevant to the applicant are:
·the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
·the sentence imposed by the courts for a crime or crimes (with the exception of the second dot point); and
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The Respondent contends that Mr Alesana’s history of offending is serious and frequent, and regard must be had to the cumulative effect of repeat offending. The Respondent’s contentions in this regard are amply supported by G2, folio 21 to 27. There is no extended period where Mr Alesana was not being dealt with by the criminal courts for offending related to violence, breaches of domestic violence orders or driving offences involving alcohol.
Of the offences where the particular circumstances of the offences are known to me, I see there are violent offences against women and an instance of an offence against Mr Alesana’s daughter. By their very nature I view these offences as serious.
Unfortunately, the particulars of that latter offence are not clear as I understand aspects of the proceedings in which the matter was dealt with may not have been released to the Respondent. Mr Alesana’s version of events in his evidence was that he was playing with his daughter and her friend with a boxing glove, and something happened involving a chair being broken. It is apparent from the extract of proceedings in which the matter was dealt with (I think using the description of ‘sentencing remarks’ is not accurate) that the presiding Magistrate did not consider the circumstances of themselves warranted a term of imprisonment to be served. The imposition of an intensive corrections order also took into account ‘the three assaults’ which, I infer, included the assaults against Ms Woodbury and the breaches of good behaviour bonds from earlier offences. It is significant that at this time the Court did not view a custodial sentence to be appropriate, and I take this into account as to the relative seriousness of the conduct.
The Magistrate further observed (G2, folio 29 point 24) that an aspect of one of the assaults (it is not clear which) was ‘not a heavy strike’.
More generally as to the seriousness of Mr Alesana’s conduct as a whole, I take into account the remarks of the sentencing Magistrate observing Mr Alesana’s violent history and the influence of alcohol on his conduct. In responding to the assault on the stranger at the hotel, the Magistrate stated he was ‘flabbergasted’ that Mr Alesana was drinking at all and asked Mr Alesana “…my goodness me – can’t you stop drinking?” His Honour observed Mr Alesana to be a thug who cannot control himself by getting involved in situations that have nothing to do with them, observing him to be ‘full of grog and aggression’. In relation to the assault on the stranger the Magistrate observed that when that matter was aggravated by the fact that he was subject to three bonds and an intensive corrections order, the only appropriate penalty was one of full-time custody.
The court refers again to the offending on 29 July 2019, where Mr Alesana again referred to the circumstances involving the assault on his daughter as ‘playing a game’ but I cannot tell from the transcript what the Magistrate made of that. The Magistrate says ‘yes, playing a game’, but I cannot tell whether the Magistrate was accepting that version of events or perhaps repeating Mr Alesana’s explanation dryly. I suspect the latter.
It is clear that the Magistrate observed that when the assault on the stranger was aggravated by the fact the was subject to three bonds and an intensive corrections order, the only appropriate penalty was one of full-time custody.
I am not prepared to describe Mr Alasana’s conduct when viewed as a whole as anything other than serious. However, I am to have regard to the sentence imposed by the courts for the crimes, and it is clear the court was not inclined to impose any full-time custodial sentence at all for the assaults other than the final assault against the stranger, and then only as aggravated by the breach of bonds and intensive corrections order. I must take this into account, and this tempers my findings as to the seriousness of the particular offending where I have evidence addressing the circumstances of the offending.
It is the frequency of the applicant’s conduct, when viewed as a whole, and its nature as involving violent conduct against women and (on one occasion) a child that renders it serious.
As to the seriousness of the offending in 2004, I do not know enough about the circumstances of that offending for it to influence my decision substantially. While I note the Respondent’s contention that the criminal history discloses a trend of increasing seriousness, with respect I am not entirely sure it does. I think it shows recently that the court lost patience with Mr Alesana’s failure to abide by the terms of his bonds and intensive corrections order, but the offences Mr Alesana has been convicted of are similar to those he has regularly been convicted of.
Finally, as to the circumstances of particular offences committed by Mr Alesana, I note that at G8 folio 189 there is an extract from the Daily Telegraph describing Mr Alesana being charged with maliciously inflicting grievous bodily harm on a victim during what was described as a ‘bar fight’ on 13 March 2006. The victim, according to the article, was placed on life support after being kicked in the head after falling to the ground. I am unable to match the event referred to in that article to any of the convictions noted in Mr Alesana’s criminal history, and have placed no weight on the newspaper article.
I note also that when Mr Alesana had the opportunity to elaborate upon or comment upon the circumstances of his offending, he did not cogently add much to my level of knowledge as to the circumstances of his offending.
I am to take into account whether a non-citizen has been formally warned about the consequences of further offending in terms of his migration status. In this regard, G8 folio 188 is a ‘formal counselling letter’ issued by the Department of Immigration and Citizenship on 19 June 2007 that fits the description of a formal warning. I took Mr Alesana to the letter during the hearing but it was clear he had not noted the existence of that letter either at the time it was sent or more recently. I am not satisfied to say that the letter was not received by Mr Alesana (noting it was sent by registered post), and for the purposes of considering the seriousness of Mr Alesana’s conduct the fact that the warning apparently didn’t register with Mr Alesana on any level is not to the point. I am satisfied that Mr Alesana was warned, and this counts significantly against him in understanding the seriousness of his conduct as a whole in circumstances of his continued offending after that date.
Generally as to the nature and seriousness of the applicant’s conduct to date, I find that the offending is serious given its violent nature and the circumstances in which the victims have on occasion been women. I also accept that cumulative effect of Mr Alesana’s offending renders his conduct very serious. My findings as to seriousness are however tempered to an extent having analysed the way in which the courts have reacted to Mr Alesana’s conduct for the matters where the circumstances of the offending are known to me. I note the court did not impose a custodial sentence until it was faced with the accumulation of breaches of bonds, and the commission of a further assault while Mr Alesana was under an intensive corrections order. The earlier assaults in themselves did not appear to warrant custodial sentences.
Nonetheless, I accept the Respondent’s submission that this factor weighs in favour of non-revocation of the cancellation of the visa, particularly having regard to the cumulative effect of repeated conduct.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of the Direction provides that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I am to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
In considering the risk to the Australian community, I 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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[2]
[2] D79, [13.1.2]
The Respondent submits that alcohol abuse has played a part in all of the applicant’s violent offending, and that was certainly the perception of the sentencing Magistrate. I agree that evidence addressing whether Mr Alesana has committed to alcohol rehabilitation is the key to assessing his risk of recidivism.
The evidence in that regard however is paper thin. Mr Alesana has very recently engaged with counselling sessions addressing alcohol abuse among other matters while in immigration detention. The reports of those sessions indicate Mr Alesana was engaged with the sessions, which is positive, but noting that the sessions have taken place in immigration detention within the last few months they provide little reassurance that Mr Alesana has made the fundamental changes necessary for him to avoid the influence of alcohol on his propensity to violently offend.
I have also taken into account the evidence of Mr Alesana’s participation and completion of a ‘Remand Domestic Abuse’ program presented by the NSW Department of Justice over three days, and completion of the Positive Parenting Program on 20 August 2019 while incarcerated at Parklea,
Mr Alesana has also emphasised the sobering nature of his current predicament in immigration detention and impending removal from Australia. Mr Alesana, in various ways, told me that this situation was providing strong motivation for addressing his drinking problem and propensity to offend violently while drunk. On the one hand, I observe that the previous warning given to Mr Alesana in 2007 as to the consequences on his migration status of continued offending was not noticed and did not achieve much, but on the other hand I observed Mr Alesana to be genuinely distressed at his predicament. In response to almost every matter I raised with Mr Alesana in the course of opening submissions and closing submissions, Mr Alesana emphasised his concern as to the welfare of his children if he should be separated from them and the motivation this provided to him to address his offending. Perhaps the automatic visa cancellation process and immigration detention has got through to Mr Alesana the message that the criminal justice system had not successfully conveyed. The Respondent reasonably contends that the applicant’s family responsibilities had not acted as a protective factor in the past. I agree, and as such I can conclude only that Mr Alesana remains likely to reoffend in the future.
As to the nature of any further offending, I accept it is likely to be violent, and will be potentially perpetrated on strangers or on women while Mr Alesana is drunk. It would not take much for the offending described by the Magistrate as ‘a light strike’ to involve the headbutting or punching that was a feature of Mr Alesana’s most recent offending against a stranger.
While I place some weight on Mr Alesana’s commitment to address his offending and the alcohol abuse that lies behind it arising out of his current predicament, the respondent is correct to say that there is little objective evidence upon which to assume any degree of rehabilitation has been undertaken. I consider Mr Alesana presents a real risk of reoffending in these circumstances, and the nature of his offending poses a risk to the Australian community.
It is difficult to say whether the risk Mr Alesana poses presents an ‘unacceptable’ risk, given the unpredictable nature of the consequences of violent offending particularly where the offender commits assaults while intoxicated. I have no evidence of any serious injuries being inflicted on victims, other than the reference in the newspaper article that does not appear to relate to any convictions. I am content to describe the risk Mr Alesana poses to the community as substantial, and in the absence of countervailing considerations would justify the visa cancellation not being revoked.
The best interests of minor children in Australia
The second primary consideration which I need to turn my mind to is the best interests of minor children in Australia. Paragraph 13.2 of the Direction provides the following guidance:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the chid.
(2)This consideration only applies if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long period 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 the 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

I turn first to consider the best interests of I, M and Te. I do so because I accept that Mr Alesana lived with these boys in a household with their mother for a substantial albeit interrupted period prior to his incarceration. I accept the evidence provided to the Tribunal by Ms Burge confirming the strong and positive parental role Mr Alesana provided for these boys, including Te who looks to Mr Alesana as a father.
Te’s father is RL. I am told that Mr Laloulu has been imprisoned for the rape of (a child), and the sexual assault of another Tl (also a minor). The circumstances of this offending and its prosecution have obviously been very traumatic for Mr Alesana and Ms Burge. It provided, as I understand it, a turning point in their relationship which was described as on again / off again, although there has been subsequent period of separation.
I and M are very young. I has a medical condition arising from a series of viral infections, including febrile seizures. He has developmental delay and is being investigated for autism. I accept Ms Burge’s evidence that it has been very difficult for her to manage I’s medical condition, particularly without assistance from Mr Alesana.
The Respondent accepts that it is in I’s and M’s best interest that the visa cancellation be revoked so that Mr Alesana can be physically present and involved in their upbringing. This is a weighty concession and is appropriately given as there is no evidence of any negative impact on these children of Mr Alesana’s conduct, and there is clear evidence from Mr Alesana and Ms Burge that Mr Alesana has a close relationship with these boys including regular contact and visitation while in immigration detention. The best interests of I and M carry substantial weight in favour of revocation.
Ms Burge explains in her written statement at A3 that Mr Alesana is the only father that Te has known, and Mr Alesana has taken on the full role of his father. I accept this evidence. I am conscious that Te is at an age and at a place where a positive male role model is extremely important for him. It is clear that his own father is not a positive role model, and there are obvious problems with viewing Mr Alesana as a positive role model. I do however accept Ms Burge’s evidence to the effect that at home Mr Alesana and Te were close, and Te looks up to him. Although Mr Alesana is not Te’s father, I consider that he has a parental relationship with Te, and it is in Te’s best interest that the relationship continue in a form that will allow for Mr Alesana to be phsyicially present. I also place substantial weight in favour of revocation in respect of Te’s best interests.
Mr Alesana is not represented in these proceedings. I have no direct expert evidence addressing the likely effect on I, M and Te on separation from him, but draw from Ms Burge’s evidence that Mr Alesana and the children are close, and they have resided together in a household that the effect will be significantly negative. I have no evidence of the views of these children.
I have considered the best interests of Mr Alesana’s older daughters who still live with Ms Burge: B and L. B may have recently turned 18, and so I take into account her interests as a non-primary consideration pertaining to the strength, nature and duration of ties. The dates of birth for B and L as documented at G2, folio 48 suggests that at least one of those dates is in error.
In his statement at G10, Mr Alesana had described a period where he was having difficulty disciplining his older children (referring to his daughters) and there was a lot of fighting and negativity in the household, and he moved out and started a relationship with another woman (I understand this to be the victim of his assaults: Ms Woodbury). Mr Alesana however describes that his children wanted him to return home. At the hearing, Mr Alesana also confirmed that his older daughters spend a lot of time away from the house staying with friends.
Further as to Mr Alesana’s relationship with B, Ms Burge describes Mr Alesana as being a ‘rock’ for B and Ms Burge’s other daughter Tl in dealing with the circumstances of the rape and sexual assault. It is also the case from Ms Burge’s evidence that B faces difficulties in relation to her mental health and both B and L have had problems with the Police.
I consider that the evidence as to whether it is in the best interests of L (a minor), and generally in the interests of B for the visa cancellation to be revoked is less compelling. On balance however, I accept that it is the best interests of L for the visa cancellation to be revoked, and also for Tl, as there is evidence that Mr Alesana has performed a parental role for these children, and in the recent past has resided in the same household with them. I understand however from the evidence of Ms Burge and Mr Alesana that there were periods of absence and less close contact.
As to E (6) and C (5) , I have limited information about their circumstances. Mr Alesana told me he had some regular contact with those children prior to his incarceration, but he has had no contact with these children while he has been incarcerated and does not know their whereabouts. I consider that Mr Alesana has a reduced parental role in relation to these children.
As to M (14) and E (8), I also have limited information about the amount of contact or the nature of the parental role Mr Alesana has for these children. It is remarkable that these biological children were not identified by Mr Alesna when he listed his minor children at G2 folio 48 and 49. The children have different mothers, and I have no evidence from these persons as to the role Mr Alesana has had in raising these children. Mr Alesana told me at the hearing that he has however had some form of contact with them in the last few months.
I do not have any evidence from these four children’s main parental care providers about Mr Alesana’s role, and nor do I understand there to be any formal Court orders or parenting plans in place. Mr Alesana described meeting an informal arrangement for child support for E and C. Accepting Mr Alesana’s evidence about the extent of contact, I consider it to be limited. There is no evidence of any negative impact arising out of Mr Alesana’s conduct on these children.
I have no specific evidence addressing the likely effect of separation from Mr Alesana. I do not consider it to be as adverse in relation to these four children as it would be for the children with whom Mr Alesana lived prior to his incarceration. I accept, on the basis of Mr Alesana’s evidence that other persons fulfill the main parental role for these children. I have no evidence from these children.
I consider that the best interest of these four children would be served by revoking the visa cancellation so that the limited contact Mr Alesana had with them might resume, assuming in the case of E and C that Mr Alesana can re-establish contact with their mother. However, given the substantially reduced parental role and reduced scope of meaningful contact, the weight I attach to this conclusion is proportionally much less.
There are a large number of other children whose best interests I must take into account, but who were not the subject of evidence addressing their individual circumstances. In this regard, I refer to the evidence Mr Alesana gave of being aware of the existence of three other of his own children, but not being aware of their names or dates of birth, Mr Alesna’s grandchildren through his adult daughter Tm, and the eight nieces and nephews, being the adopted and natural children of his brother Mr Leotu.
On the evidence of Mr Alesana, I find that he does not perform a parental role in respect of any of these children, and so far as I know each of the children have other adults fulfilling that role. Mr Alesana has either had no contact with the children, or contact of the nature of a more distant, but still close, relative.
I have no evidence addressing whether Mr Alesana’s conduct has had a negative impact on any of these children, and no specific evidence addressing any particular adverse effect on the children of separation from Mr Alesana. I consider there will be some limited adverse effect due to separation from children who know Mr Alesana, such as his nieces, nephews and grandchildren, but no negative effect from children he has never met and cannot identify. I have no evidence from any of these children or their care givers, with the exception of Mr Leotu who told me to the effect that Mr Alesana has a positive role in his children’s lives.
In relation to these children, I consider their best interests are not served either way as their relationship with Mr Alesana is more removed than that of the children Mr Alesana knows and has spent time with as a parent.
Expectations of the Australian community
Paragraph 13.3 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 concern or offences is 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.
I note, as explained in Afu and Minister for Home Affairs [2018] FCA 1311, and now FYBR v Minister for Home Affairs [2019] FCAFC 185 the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive government. I am obliged to consider this factor in line with the norms expressed in the Direction.
In this regard, the terms of the Direction do not point me to one particular conclusion as to the expectation of the Australian community over another. On the one hand, I recognise that violent offences and particularly violent offences against women are viewed very seriously, and Mr Alesana has demonstrated wholesale disregard for Australia’s laws and justice system through his recidivism and breach of bonds.
On balance, I consider that while the individual offences with which Mr Alesana has been convicted might not produce an expectation in the community that his visa be cancelled, in line with the guidance offered by the Direction, the fact that the Australian community expects non-citizens to obey Australian laws and Mr Alesana has demonstrably not done so throughout his entire time here leads me to conclude that the Australian community would expect the visa cancellation not to be revoked.
Other considerations: strength, nature and duration of ties
When considering the strength, nature and duration of ties to Australia, I 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:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).[3]
[3] D79, [14.2]
I take into account that Mr Alesana first arrived in Australia as a minor in 1994, and he has not left Australian since that time. However, I also note that Mr Alesana was first convicted of offences as a juvenile shortly after his arrival. Mr Alesana has also spent a substantial period of his time in Australia incarcerated.
I have limited evidence of any positive contribution to the Australian community by Mr Alesana other than through work I accept that Mr Alesana has contributed to the community through his work as a scaffolder. In this regard, I heard evidence from Mr Rozakis who has worked with Mr Alesana in that field. He spoke highly of Mr Alesana’s work and was confident Mr Alesana would secure employment in that field in the future. I accept his evidence.
As to the strength, nature and duration of Mr Alesana’s family or social links with Australian citizens and permanent residents, I have recounted above that Mr Alesana has a very large family in Sydney, and I accept he has further extended family in Melbourne
Mr Alesana and Ms Burge have indeed had an ‘off again / on again’ relationship as they have both described. That relationship has had that characteristic for some two decades and produced many children. Of particular significance is that the relationship was largely ‘on again’ in the 4 to 5 years preceding Mr Alesna’s most recent incarceration, although there was a separation for about 6 months as described by Mr Alesana.
I accept that Ms Burge relies heavily on Mr Alesana when he is around, but note that Ms Burge now receives social security support and resides in public housing in his absence. Nonetheless I accept that if Mr Alesana is not permitted to remain in Australia, this will cause significant distress and hardship to Ms Burge.
I also take into account the ties Mr Alesana has with his adult children, including his son Dillon with whom he has described a recent falling out.
I consider that the nature of Mr Alesana’s connections with Australia, primarily through the long duration of his time here and his connection to Australian citizens in his large family to be significant, notwithstanding that less weight is to be given to this factor where Mr Alesana began offending soon after arriving in Australia. I consider this factor weighs in favour of revoking the visa cancellation.
Other considerations: impact on victims
There has been no evidence provided to the Tribunal addressing the impact of a decision not to revoke the visa cancellation on the victims of Mr Alesana’s offending. Noting that Ms Burge was the victim of his offending in 2004, I attempted to explore the circumstances of those offences with her in her evidence, but she could not or would not provide any further detail. I note Ms Burge strongly supports Mr Alesana now.
I otherwise have no evidence about the impact of a decision not to revoke the visa cancellation on the victims of Mr Alesana’s offending. I place little weight on this consideration in all the circumstances.
Other considerations: extent of impediments if removed
Mr Alesana confirmed that he has family in Samoa and New Zealand, and that he speaks Samoan. I now proceed on the basis that if Mr Alesana was to be removed from Australia, he would be removed to Samoa and not New Zealand.
Having regard to Mr Alesana’s age and health, the absence of any language or cultural barriers and the presence of close family in Samoa I consider there is no impediment facing Mr Alesana if removed, and this factor weighs against revoking the visa cancellation. I do however take into account Mr Alesana’s evidence that he has not lived in Samoa as an adult. I accept that removal to Samoa will therefore be challenging, and disruptive in that sense but I place little weight on that.
I have also considered the extent of impediments if Mr Alesana were to choose to go to Samoa on the basis that it will be more difficult to secure work given the smaller and relatively less developed economy. I do not consider any difficulty in this regard would weigh in favour of revoking the visa cancellation.
Other considerations: International non-refoulement obligations and Impact on Australian businesses
Mr Alesana has raised no concerns regarding Australia’s non-refoulement obligations, and nor are any reasonably apparent in respect of Samoa. Similarly, no evidence has been provided putting Australia’s business interests in issue in this review.
ASSESSMENT
I have taken into account Mr Alesana’s oral submissions at the hearing, and the matters set out in his written outline. As mentioned above, Mr Alesana is understandably entirely preoccupied with the consequences of any removal from Australia on his relationship with his children.
I consider the best interests of Mr Alesana’s minor children with whom he has either had regular contact or a clear parental role, and in particular the best interests of I, M and Te carry determinative weight in this matter. I, Te and M’s best interest are a primary consideration and I think it is clear that their best interests are served by revoking the visa cancellation.
On the other hand, I have had difficulty reaching the conclusion that these children’s best interest should outweigh Mr Alesana’s repeated violent offending and the thin evidence, at best, relied upon to persuade me that he will address the cause of his offensive behaviour.
While I am of the view that non-revocation would best serve the interests of protecting the Australian community, I have decided on balance that the best interests of Mr Alesana’s minor children, and in particular Te, I and M is of greater weight. This conclusion is reinforced by recognising the very strong ties Mr Alesana has with Australia through the duration of his presence and his very large family.
I should add however that this conclusion is finely balanced. I told Mr Alesana as much at the directions hearing. I am not confident that Mr Alesana has addressed the cause of his offending (the abuse of alcohol), and am reminded of the Magistrate’s frustrated rhetorical question of Mr Alesana: “…my goodness me – can’t you stop drinking?” No doubt stopping drinking is not as simple as that, but I see little evidence that the hard work, rehabilitation and insight required to actually stop drinking has even commenced. Having reviewed the evidence available to me about Mr Alesana’s children, family and connections to Australia I observe that he has so much to lose if he does not act on his expressed commitments to reform.
The Minister’s submissions on the application of the Direction are straightforward. I largely accept everything that was submitted on behalf of the Minister, save for the main contention that the best interests of the children should be outweighed by the other primary considerations of the need to protect the Australian community and the expectations of the Australian community. The Minister contends that those two primary considerations outweigh all other considerations such that there is not another reason of sufficient weight to enliven the statutory power to revoke the cancellation of the visa.
I have marginally come down on the other side of the scale in relation to the best interest of the children, reinforced to a lesser degree by the extensive ties Mr Alesana has to the Australian community. In my assessment, the best interests of Mr Alesana’s children (in particular Te, I and M) outweigh the other considerations that would otherwise support the non-revocation of the visa. I consider there is another reason why the original decision should be revoked, and have formed that view through the application of the Ministerial Direction.
In the exercise of the discretion inherent in the Ministerial Direction, I have not taken into account the real potential that the Department will either be obliged to commence a different visa cancellation process, or may form the view that the visa originally granted to Mr Alesana either has never been or is not now in effect. I do not purport to hold that the visa is in effect, and restrict my decision to the identification of whether there is any reason why the decision to cancel Mr Alesana’s visa should be revoked, with my consideration of this issue exercised in accordance with the Direction.

For the reasons expressed, I find that there is another reason to revoke the visa cancellation. I set aside the decision under review, and revoke the visa cancellation.

133. I certify that the preceding 132 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

.........[sgnd]......................................
Associate
Dated: 31.08.2020

Date of hearing: 20.08.2020 and 31.08.2020

Representation for the Applicant: Self-represented

Representation for the Respondent: Ms Ada Wong of Mills Oakley

[2020] AATA 3312

31 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	20.08.2020 and 31.08.2020
Representation for the Applicant:	Self-represented
Representation for the Respondent:	Ms Ada Wong of Mills Oakley