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

Atua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4973 (9 December 2020)
Division:GENERAL DIVISION
File Number: 2020/5683
Re:James Atua
APPLICANT

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

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:9 December 2020
Place:Sydney

The reviewable decision made on 15 September 2020 is set aside, and in substitution the mandatory visa cancellation is revoked.
..........................[sgd].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – substantial criminal record – application for revocation – protection of the Australian community – risk of reoffending – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia – decision set aside and substituted
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Migration Act 1958 (Cth) ss 499, 501, 501CA
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 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
9 December 2020
The issue

The Applicant, Mr Atua, is seeking to have set aside the decision the Respondent’s delegate made on 15 September 2020 not to revoke the cancellation of Mr Atua’s Class TY subclass 444 Special Category visa. Mr Atua contends that there is another reason why the original decision should be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (the Act).
Mr Atua’s visa was cancelled on 28 May 2019 because he did not pass the character test defined in s 501(6) of the Act because he had a ‘substantial criminal record’.[1] A ‘substantial criminal record’ is defined in s 501(7) and includes where a person has been sentenced to a term of imprisonment of 12 months or more. Mr Atua was sentenced to a term of imprisonment of 28 months for the offences of Not keep firearm safely-prohibited firearm and Possess unauthorised prohibited firearm-T2. He does not dispute that he fails the character test. He signed his application for revocation of the visa cancellation on 23 June 2019.
[1] Migration Act 1958 (Cth) s 501(6)(a).
Background
Mr Atua was born in Samoa in August 1995. His family moved to New Zealand and in June 2002 he arrived in Australia with his parents and two younger brothers when he was six years old. He has lived in Australia ever since. In February 2016 he completed a Certificate III in Engineering – Fabrication Trade.
Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79)
Direction 79 given by the Respondent Minister under s 499 of the Act comprises, relevantly:[2]
[2] G45/210.
Preamble Contains the Objectives of this Direction, General Guidance for
decision-makers and the Principles that provide a framework within
which decision-makers should approach their task of deciding whether
to exercise the discretion to cancel or refuse a non-citizen’s visa under
section 501 or to revoke a mandatory cancellation under section
501CA.
…
Part C Identifies the considerations relevant to former visa holders in
determining whether to exercise the discretion to revoke the mandatory
cancellation of a non-citizen’s visa.
I address each of the considerations in Part C of Direction 79 which were identified by the parties as being relevant in Mr Atua’s case.
Primary considerations
Protection of the Australian community from criminal or other serious conduct
To consider the protection of the Australian community, I must first identify the nature and seriousness of Mr Atua’s conduct to date. Following is a summary of his criminal history.
On 17 January 2017, Mr Atua was arrested after an incident at a Vietnamese restaurant on 30 December 2016 (the restaurant incident). He was charged with aggravated robbery and placed on remand on 17 January 2017 and bailed on 3 March 2017.[3] He pleaded guilty to and was convicted of lesser charges of larceny and intimidation as addressed at [10].
[3] Exhibit R1, S3/29; G44/208-209.
On 23 August 2017, Mr Atua was arrested and charged and pleaded not guilty when police located a firearm in the back of a car he was driving. He was charged with two offences: Not keep firearm safely-prohibited firearm and Possess unauthorised prohibited firearm-T2 (the firearm offences). He was on bail in relation to the restaurant incident when he committed the firearm offences.[4]
[4] G5/27-48.
Mr Atua was in custody from 24 August 2017 until he was released on bail on 20 September 2017. His first son had been still born at 39 weeks gestation on 17 September 2017. Mr Atua was on bail for about a year and three months until his sentence hearing on 4 December 2018.[5]
[5] G44/208.
On 10 October 2017 Mr Atua pleaded guilty to and was convicted of two offences in relation to the restaurant incident: larceny (<=$2,000) and stalk/intimidate intend fear physical etc harm (personal)-T2 (intimidate). He was fined $600 in respect of the larceny offence and in respect of the intimidate offence, entered into a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for 18 months.[6]
[6] G3/25; G4/26.
While on bail for the firearms offences, at Fairfield Local Court on 20 August 2018, Mr Atua was found guilty of the following offences arising from the one incident committed on 23 August 2017:[7]
Not give left change of direction signal with lights FINE : $250
Not obey direction of police/authorised person FINE : $400
Not comply conditions of licence FINE : $400
[7] Exhibit R1, S5/42-43; G3/25.
Neither party considered those offences of significance. This case centred on the restaurant and firearms offences.
Mr Atua’s first convictions were for the larceny and intimidate offences committed on 30 December 2016. The sentencing magistrate’s remarks on 10 October 2017 were minimal and not helpful to an understanding of what the facts were. They did state that the only conditions imposed on the bond were to be of good behaviour and to notify any change of address.
Mr Atua’s version of the events and that for which the Respondent contended based on police and court records differed.
Mr Atua’s version in his statement dated 25 November 2020 was:
One of the co-accused asked me to drive him and his brother (another co-accused) to a Vietnamese restaurant in Marrickville for lunch. I was the only one with a car. When we arrived, I met the two other co-accused for the first time. I did not know them personally before that. Walking into the restaurant I did not know that there was an issue that one of the co-accused wanted dealt with. I just sat down at a table near the door and waited for a menu. While I was sitting there was a verbal argument between two Vietnamese men, I could not understand what they were saying as they were speaking in Vietnamese, but I realized then that something was wrong. People left the restaurant at this stage. One or two of the co-accused got up and headed towards the counter, I remained seated and was playing with the butter knife that was part of the cutlery at the table. The argument continued and I walked towards the counter, stood there for a bit, then reached into the tip jar and removed around $20 (notes and coins) and left the restaurant.
The account the Respondent relied on in their Statement of Facts, Issues and Contentions (SoFIC) was derived from documents produced under summons by Central Local Court including the NSW Police Facts Sheet dated 17 January 2017:[8]
(a) Two of the offenders were in a money dispute with a restaurant of which one was a former employee. The offenders had on multiple occasions in November 2016 aggressively approached the restaurant demanding the money.
(b) On 30 December 2016, the applicant along with three co-offenders entered the restaurant with the two offenders. One of the offenders said to the manager of the restaurant (the victim) that all she had to do was pay the co-offenders (of which included the applicant) $2,000 and that they would do as she wanted.
(c) During this time, the applicant had a knife in his hand. The other offenders then attempted to open the cash register and could be seen to act aggressively towards the victim. One offender then cut the electricity to deactivate the CCTV cameras and in his attempt to open the cash register broke the keypad so he could not access the drawer.
(d) Shortly after, the offenders became aware that a witness had called the police. The applicant then reached for a staff tip jar and took an amount of money and was later seen walking along the road with the other co-offenders counting the cash.
(e) The applicant claimed that there was no robbery and that they simply went to speak to the owner of the restaurant. The applicant then claimed that he did not really know the main offender who he had met through a friend and that he only partially knew the co-offenders. He repeated that nothing was said about money owed.
[8] Exhibit R1, S3/24-29 and S4/30-41.
The Respondent relied on Mr Atua carrying a knife and being hired as part of a standover gang to demand money during this incident to argue that this was a violent offence and within the category that can be considered to be serious. Mr Atua’s case was to minimise his culpability. During the hearing he said that he had gone to the counter to de-escalate the argument.
The sentencing remarks for the restaurant offence do not disclose the magistrate’s assessment of the facts. It is not for the Tribunal to speculate as to what that assessment was. I will not engage with the conflicting versions of events put forward by the parties.
I accept the argument of counsel for Mr Atua, that in those circumstances I take into account that Mr Atua has pleaded guilty to the elements of the offences as follows:[9]
(a)In relation to the larceny offence, he took a sum of money from a tips bowl in the premises that belonged to the owners of the premises and he intended to deprive the owner permanently of that money and took the money without the owner’s consent;
(b)In relation to the intimidation offence, Mr Atua was part of a group of people who intimidated another person in the restaurant and this was done with the intention of causing fear of physical or mental harm in that other person.
[9] Applicant’s Statement of Facts, Issues and Contentions.
I take into account that although these were Mr Atua’s first offences, the magistrate entered convictions for both offences, imposed a fine of $600 for the larceny offence and a good behaviour bond for 18 months for the intimidation offence. Being one of a group of people intimidating another person intending to cause fear of physical or mental harm in that person is violent in nature and within the category of offence that may be considered serious.
In the letter dated 10 June 2020 which contain submissions to the Respondent’s delegate, Mr Atua’s solicitor wrote:
Mr Atua acknowledges that he was charged with Stalk/intimidate intend fear and would like it to be known that he did not cause any harm to the victim. He was merely part of a group and in no way a ”ring-leader” but acknowledges that he should have exercised better judgement and not been fraternising with people of questionable character.
After a four day defended trial at Fairfield Local Court, Mr Atua was found guilty of Not keep firearm safely-prohibited firearm and Possess unauthorised prohibited firearm-T2. On 4 December 2018 he was sentenced to imprisonment (aggregate) of 28 months commencing 6 November 2018 and concluding on 5 March 2021, with a non parole period of 18 months commencing on 6 November 2018 and concluding 5 May 2020. His counsel had argued for an intensive corrections order. An all grounds appeal was lodged on 5 December 2018 and dismissed on 20 March 2019.[10]
[10] G44/207-208.
He breached his bail conditions in relation to the firearms offences once. During the sentencing hearing, his counsel described the breach as a “small blemish”. He said that he was “on very, very strict bail, initially… there were residential requirements, curfews, onerous, in my submission, reporting obligations, behavioural requirements, not to contact any of the co-accused”.[11]
[11] G5/38.
Counsel for Mr Atua made the following submissions during the sentencing hearing. While on bail, Mr Atua had taken active step to rehabilitate himself, to increase his involvement in the community. There was no evidence about links with outlaw motorcycle gangs or clubs led and the prosecution had not made a submission about it and therefore it was not a factor to be taken into account on sentencing.[12] The fact of drugs being found in the same vehicle as the firearms are relevant but it is a question of weight in relation to it.
[12] G5/32.
During sentencing remarks, the magistrate observed that the court’s jurisdictional limit on penalty for any one offence was two years and on aggregate sentences five years.
He said:[13]
Briefly, however, the defendants, on 23 August 2017, were in the vehicle with John Atua, they were driving and stopped by police. When they were stopped, there was a shortened .22 calibre rifle bolt action sitting in the back seat directly against the leg of Mr Vaeau. The firearm had both the barrel shortened and the stock shortened, making it significantly shorter than it had originally been. I found in that decision [the decision on conviction] that each of these defendants knew that the shortened rifle was in the vehicle at the time. I also found that the brother of the defendant, Mr John Atua, had on him and in his possession in the vehicle a magazine with ammunition that would fit the relevant weapon. At the time of being stopped and searched, Mr John Atua had in his possession approximately 28 grams of 45 methylamphetamine. A subsequent search of the car also found other drugs located within the vehicle.
Each of these defendants gave interviews and indicated that they had been driving around that evening; their versions were somewhat different, but effectively they had been in the vehicle for some time, they were driving to Parramatta to get something to eat, did not stop at Parramatta, and were driving when stopped by the police. It would appear that they were driving for approximately 30 to 45 minutes, and were in possession of the weapon at the time that that was occurring.
…
In my view, it is clearly within the midrange, if not above the midrange, of objective seriousness for offences of this nature.
[13] G5/42-43.
In relation to the subjective case, the magistrate took into account the following:[14]
[14] G5/44-46.
·Mr Atua’s partner had a still born child while Mr Atua was in custody.
·He has had another now one month old child with his partner.
·He has turned to his church and was involved in various activities.
·He has completed a metal worker apprenticeship and has a trade to turn to.
·He had difficulty finding work after being released on bail and started his own business and provides assistance to his family.
·He stopped playing rugby league but hopes to return to it.
·It appears that he does not have issues with drugs or alcohol.
·He is supported by his family and the community.
·He says he has turned his life around, being heavily involved in his church and community.
·It is a contradistinction the Mr Atua has such an affinity with his church and community and religious belief but put himself in custody of a weapon of this nature and drugs in the circumstances he was.
·The pre-sentence report found that Mr Atua failed to demonstrate insight regarding the potential for harm towards community members as a result of possessing an illegal firearm which is of significant concern and raises significant concern about his prospects of rehabilitation. He was assessed as suitable for community service work.
·While on bail for intimidation type charges, Mr Atua was in possession of firearm, shortened and in public.
·Mr Atua is not of good character, having previous convictions.
·Mr Atua has reasonable prospects of rehabilitation. His family and other support will assist him in his long term rehabilitation.
In conclusion, the magistrate found the following. There was a need to protect the community, and a need for accountability and denunciation, particularly in light of the pleas of not guilty. There was a strong need for rehabilitation of a young man with a long and hopefully prosperous life ahead.
Mr Atua accepted that the firearm offences were very serious offences by their very nature and aggravated by the fact that Mr Atua was on bail for the restaurant offences at the time. The sentencing magistrate made very clear how serious the offences were in his sentencing remarks and the convictions and sentence imposed.
The firearms offences were an escalation in Mr Atua’s offending.
In relation to the seriousness of Mr Atua’s conduct, the Respondent relied on a note taken on 16 November 2018 by the Corrective Services officer who prepared the pre-sentence report that Mr Atua said that the drugs found on his brother during this offence were in fact his and that he would sometimes sell drugs to supplement his income. The note also stated that he insisted that the officer not make a note of it anywhere.[15] It was not mentioned in the pre-sentence report. Mr Atua contested that he had made such a confession. It is a very serious matter if true. While the rules of evidence do not apply to the Tribunal, I give this evidence no weight because it is prejudicial to Mr Atua in circumstances where the evidence cannot be properly tested by cross-examination of the officer. He has not been charged with a drug offence.
[15] Exhibit R1, S21/123.
His solicitor by way of submissions dated 4 July 2019 submitted that Mr Atua was not made aware before any/either of his offences about the consequences of further offending in terms of his migration status.[16]
[16] G29/141-142.
I find that Mr Atua’s criminal offending has been very serious and weighs heavily against revoking the cancellation of his visa.
What is the risk to the Australian community should Mr Atua commit further offences or engage in other serious conduct?
Paragraph 13.1.2 of Direction 79 provides that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
I agree with the Respondent that Mr Atua’s past offending is of a violent nature, was committed in public spaces and therefore, the potential harm to individuals and the Australian community is serious should he engage in such conduct again.
The Respondent submitted that Mr Atua’s affiliation with the Outlaw Motor Cycle Gang (OMCG) members and individuals of questionable character and involvement in drug dealing causes a risk to the community in both terms of potential mental and physical impacts and also a significant financial cost associated with emergency services and law enforcement activities.
The Respondent submitted that there is very real ongoing risk that Mr Atua will reoffend taking into account a number of matters. I address each of them below. The submission of the Respondent appears in italics before my consideration.
Mr Atua committed the serious firearms offence while on bail for the restaurant offences. That is relevant as part of his history. He did not reoffend during the year and three months he was on bail for the firearm offences and his single breach of his bail conditions during that period was not referred to by the sentencing magistrate. I infer that if he is released from detention he will be on parole until 5 March 2021.

Mr Atua has provided inconsistent and dishonest evidence about his knowledge of and involvement of the offences. The Respondent specified two examples in its SoFIC. The first was that Mr Atua claimed “there was no robbery”.[17] In the context of the report from which the quote was taken, he was referring to the failed attempt to force open the till. He also said that he did not recall taking cash from the tip bowl. I note that neither party contended that Mr Atua had any part in trying to force open the till. Counsel for Mr Atua correctly pointed out that the charge of robbery in company was not pursued. Mr Atua pleaded guilty to larceny. The second example was his statement that “he had no knowledge the firearm was there” (in the car).[18] The statement continues “but conceded he may have touched it”. This appears in the NSW Police Facts Sheet dated 24 August 2017. It was Mr Atua’s position at the defended trial that he did not know the firearm was in the car. The magistrate found that it was. The onus was on the prosecution to prove its case beyond reasonable doubt. It did. Mr Atua was sentenced accordingly. Considering the evidence overall, there have been some inconsistencies in the material provided in Mr Atua’s case, for example his solicitor rather curiously referred to Mr Atua’s larceny offence as relating to a piece of clothing worth $30.[19] I am not satisfied that the evidence shows that he is dishonest.
[17] Exhibit R1, S4/40-41.
[18] Exhibit R1, S7/48.
[19] G41/180.
The applicant denies that he is an OMCG member; however, the evidence is compelling that his links are at the very least substantial. The Respondent referred to various reports apparently given by Mr Atua about his “affiliation” with OMCGs to the Corrective Services officer who prepared the pre-sentence report considered by the sentencing magistrate including that his friend who sat in the back of the car during the firearms offence was “OMCG affiliated” (Intake Assessment Form – Community Corrections August 2018) or an “OMCG member” (records of NSW Corrective Services dated November 2018).[20] The Respondent claimed the COPS database showed that police Strike Force Raptor was investigating Mr Atua before the firearms offence. The Respondent further submitted that the level of adverse attention from other criminal offenders raised the inference that Mr Atua was subject to threats from inmates from other gaols because of his links with OMCGs.[21]
[20] Exhibit R1, S12/68 and S21/134-138.
[21] Exhibit R1, S17/94-107 and S21/149.
Mr Atua said the following in his statement dated 25 November 2020.[22] He has never been closely associated with any motorcycle gangs but previously knew people who were affiliated and that it was very hard to avoid growing up in the Pacific Islander community of Mount Druitt. He has never attended motorcycle gang meetings or “purposely” attended events or dinners with motorcycle gang members present and has not held a motor cycle licence. He referred to the records made by the Corrective Services officer with which he disagreed in relation to OMCGs. He did not refute that his co-accused was “OMCG affiliated”.
[22] Exhibit A1.
I do not accept the submission that Mr Atua was “being investigated” by Strike Force Raptor before the firearm offence which supports his being linked to OMCGs. The first COPS database record shows that the incident being investigated by Strike Force Raptor was an assault involving multiple offenders at a venue. Mr Atua was identified from CCTV “hanging around the same group of 11 people throughout the night”, including a co-offender in the restaurant offences. The CCTV shows that upon arrival at the venue Mr Atua physically crossed paths with his co-offender but did not acknowledge him. Police were concerned that Mr Atua had breached his bail conditions but did not proceed with a breach of bail. There was no suggestion that he was involved in the assault or that he had links to OMCGs.
I did not admit a second record referred to which was about a search of a home on 17 January 2017 in relation to a firearms/weapon prohibition order which took effect on 17 August 2016 because it did not name Mr Atua or appear to relate to him.
The first set of records from Corrective Services NSW related to a threat to assault Mr Atua on 28 March 2019 while he was incarcerated. Because the authenticity of the letter could not be ascertained, it was recommended that a change of placement be organised for Mr Atua’s safety. Other steps were also taken, including a segregation order raised. Later related records suggest that Mr Atua was also suspected of “standovers” and threatening staff. He remained on segregation and a classification review was sought on 17 April 2019.[23]
[23] Exhibit R1, S17/94-107.
Mr Atua wrote in his statement that he was not told about the threat but at the hearing said he was told about it sometime later. The original letter reflects an internal prison conflict rather than OMCG related conflict. The source of the suspicion in relation to “standovers” and threatening staff is not apparent.
Mr Atua was to be moved to another correction centre in June 2019. A record dated 18 June 2019 stated that Mr Atua objected to “going on escort” at 5 am. He did not want to go and asked to speak to a manager first as he believed he may have issues with other inmates at other jails.[24] In his statement Mr Atua said that he wanted to speak to the manager because he did not want to be moved from a centre that was only 20 minutes from his family to one 2.5 hours away.[25] Given that he had been in segregation because of a threat in the previous correction centre, it would not be surprising if he did make the claim so he would not be moved.
[24] Exhibit R1, S21/149.
[25] Exhibit A1.
I am not persuaded that the “threat” evidence supports the submission that Mr Atua has substantial links to OMCGs.
I find that Mr Atua’s own evidence demonstrates that he has known and mixed with people who were affiliated with OMCGs, including his co-accused in the firearms offence. The evidence does not establish that Mr Atua has links with OMCGs in an organisational sense which are substantial. Despite the records the Corrective Services officer made about Mr Atua’s OMCG links, in her Sentencing assessment report she assessed him as being at a low risk of reoffending and for that reason if the court made a supervised order, Community Corrections would suspend his supervision.[26] That was done also with knowledge of his “confessed” drug dealing.
[26] G21/114-116.
Mr Atua’s conduct in gaol, in particular before his release was observed to be disobedient, intimidating and argumentative and was often directed towards female staff. I have considered the reports and Mr Atua’s responses. The first few occurred early in his imprisonment and reflect adjustment difficulties. I found Mr Atua’s explanation for the incident on 26 March 2020 towards a male staff member reasonable. The allegation of poor conduct before his release while not excused can be understood in the context that he knew he was going to be picked up in a few days’ time on 5 May 2020 and taken into immigration detention. While Mr Atua did not raise that, it is apparent from the documents and in my view an understandable response when he would have expected to be released on parole on that day.
I do not accept that Mr Atua’s conduct while in prison relied on by the Respondent shows that Mr Atua does not have respect for authority and rules. I do not accept that his attitude and behaviour while in prison show that there is a risk that he would continue to contravene criminal laws given his attitude and behaviour.
Mr Atua has shown a lack of insight into the consequences and significance of his offending in terms of firearms and drugs. For the reason given above at [48], I do not take into account Mr Atua’s alleged confession to drug dealing. He has not been convicted of any drug offence. The sentencing magistrate did take into account the presence of drugs in the car and was concerned about Mr Atua’s lack of insight into the firearms offences, relying on the Sentencing assessment report prepared by the Corrective Services officer.[27]
[27] The Sentencing assessment report was referred to during previous court proceedings as the pre-sentence report and has also been referred to as such in this decision.
Mr Atua’s counsel submitted that the “lack of insight” comment in the report should not be admitted or taken into account because the writer of the report was not available for cross examination. I do not accept that submission because it fails to appreciate that the comment was taken into account by the sentencing magistrate in determining the appropriate sentence. Further, in a letter dated 10 June 2020, Mr Atua’s solicitor addressed the sentencing magistrate’s concerns that Mr Atua failed to demonstrate insight regarding the potential for harm to community members as a result of possessing an illegal firearm.[28] The explanation was as follows. Prior to sentencing, Mr Atua focused on his intentions instead of acknowledging the risks involved in driving a vehicle with an illegal firearm in it. He had no intention to threaten, intimidate or harm any members of the community and therefore at the time of sentencing was unable to acknowledge the potential for harm. He was given the tools and time to consider and reflect upon things that could have gone wrong while in possession of an illegal firearm when he completed the Young Offenders[29] program at Oberon Correctional Centre and now appreciates the risk of harm regardless of his intentions. He was remorseful and gained deeper insight into the consequences of his actions.
[28] G41/181.
[29] I understand that the Young Offenders program is also referred to as the Gurnang Life Challenge Program.
Mr Atua also completed certificates for anger management, depression management and building self esteem, and the EQUIPS Foundation Program while in prison.
Mr Atua has the same support network now as he did when he offended. That is correct.
Also relevant to Mr Atua’s risk of reoffending are the following. All his offences occurred before his first son was still born while Mr Atua was in custody in September 2017. That event has affected him deeply. The birth of his son in November 2018 “solidified his resolve to becoming a better person”. He intends being a good father to his second son. He went to prison a month after his second son’s birth and spent 18 months in prison, mostly at a considerable distance from his close-knit family, partner and young son. Another powerful disincentive to reoffending is the possibility of having his visa cancelled in the future, if he is successful in this case. He has been in immigration detention at Villawood, Yongah Hill and is currently at Christmas Island. He has been in a relationship with Ms Ala Faalelei, the mother of his two sons, since January 2015. I find on his evidence that those experiences cumulatively have had the effect of deterring him from further reoffending.
The opinions of both the Corrective Services officer in the 2018 Sentencing assessment report and Mr Tim Watson-Munro, consultant psychologist, in his report dated 10 November 2020, are that Mr Atua is at a low risk of reoffending.
Mr Watson-Munro took a history that Mr Atua was drinking quite heavily at the time of the firearms offences.[30] The evidence of Mr Atua is that by heavy drinking, he means two cans of Jack Daniels. The evidence does not suggest that alcohol or drugs was a factor in his offending or will be in the future.
[30] Exhibit A3, 4.
I find that Mr Atua’s past offending is of a violent nature, was committed in public spaces and therefore, the potential harm to individuals and the Australian community is serious should he engage in such conduct again, however, there is a low risk of reoffending. This factor weighs moderately against revoking the visa cancellation.
The best interests of minor children in Australia
Mr Atua and Ms Faalelei, his partner since 2015 and mother of his two sons, have never lived together but Mr Atua was back and forth between his parent’s home and where she lived. They plan to live with Mr Atua’s parents if Mr Atua is released into the community.
Mr Atua has a low risk of reoffending for the reasons given earlier in this decision. His lengthy period on bail in 2017/2018 with one minor breach shows that he is capable of abiding by the law. He is likely to play a positive role in the lives of each of the children referred to below. There is no suggestion in the evidence that he has abused or neglected any of the children.
Mr Atua’s son was born on 11 November 2018, a month before Mr Atua was taken into custody. He has been in custody or immigration detention ever since. There was evidence that he was a doting father during that one month. I accept the evidence of his partner that his relationship with his son is “pretty good” considering Mr Atua is in detention and contact is by video call. Their son does not talk during those calls. It is kind of hard to have a bond. That evidence demonstrates the importance of personal contact with the child which would not be possible if Mr Atua returned to New Zealand. His cognitive and social development would be adversely affected.[31]
[31] APS Public Interest Team, ‘Child Wellbeing After Parental Separation – A Position Statement prepared for the Australian Psychological Society’ (July 2018).
I do not accept the Respondent’s submission that there is no existing relationship between Mr Atua and his son, but that submission reinforces the importance of not continuing to deprive his son of the opportunity to develop the relationship over the next 16 years by returning Mr Atua to New Zealand.
Ms Faalelei said that her two sons aged eight and six have a close relationship with Mr Atua. They did not have a father figure before Mr Atua and he took over that responsibility. They were having behavioural problems which Ms Faalelei attributed to not having their biological father around. She observed that Mr Atua’s presence was a positive connection for her sons. She is struggling to juggle her parenting and work duties in the absence of Mr Atua. Other role models for her sons are her three brothers. Currently she and the three boys live with one of her brothers and his family. Mr Atua’s family look after her and Mr Atua’s son when needed, including financially.
Ms Faalelei finds it difficult to cope, emotionally and physically, bringing up three children on her own and working, even with the support of her family and some support from Mr Atua’s family. Caring for their child leaves her having little sleep and neglecting her own well-being. She is often distressed, suffers anxiety attacks and goes through phases of depression because of Mr Atua’s absence. That obviously impacts adversely on each of the children.
Mr Atua’s physical presence would benefit each of the three children directly, and indirectly by supporting Ms Faalelei and reducing the load she bears.[32]Electronic or telephonic means of communication are not in the best interests of a child.
[32] Exhibit A3, 8.
It is no answer that Ms Faalelei plays a parental role to each of her sons or that Mr Atua’s mother also plays a parental role to their son. Mr Atua would be a father to his son and provide a positive male role model in the lives of Ms Faalelei’s sons.
The Respondent submitted that Mr Atua’s child could regularly visit him with Ms Faalelei or alternatively they could relocate. Relocation would have to include Ms Faalelei’s two sons. There was no evidence about relocating to New Zealand. Ms Faalelei has strong family support from her mother and I infer from her three brothers in Australia, one of whom she and her sons are currently living with. The evidence does not show whether her two sons have any links with members of their father’s family. At the highest, relocation may be a possibility. I give it little weight. There was no evidence about the feasibility of “regular” visits to New Zealand. In any event such visits would not be a substitute for Mr Atua’s physical presence in the lives of his son and Ms Faalelei’s sons in Australia.
His siblings aged 17, 16, 15, 13, and 10 and niece aged three would also benefit from his physical presence in their lives, although he does not have a parental role in their lives. His family is a very close-knit one. There was mention of other nieces/nephews but insufficient detail to lead me to form a conclusion about Mr Atua’s role in their lives. There are many photographs of his three year old niece in evidence.
The best interests of each of the children would be served by Mr Atua’s visa cancellation being revoked.
This consideration weighs compellingly in favour of revoking the visa cancellation.
Expectations of the Australian community
The expectations of the Australian community would be that Mr Atua’s visa be cancelled because he has committed serious criminal offences giving rise to character concerns and should have his visa cancelled.[33] This factor is in substance adverse to any applicant.[34]
[33] FYBR v Minister for Home Affairs [2019] FCAFC 185, 75.
[34] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, 76.
The consideration weighs moderately against revoking the visa cancellation.
Other considerations
Strength, nature and duration of ties to Australia
Mr Atua has grown up, been educated, worked and lived in Australia since he was six years old. He has close and continuing ties to his partner of five years, his two year old son, his partner’s two sons aged eight and six, and his large extended family who are very supportive of him. They are mostly Australian citizens or permanent residents. He and his family have strong ties to their church. He became more involved in the activities of the church while he was on bail in 2017/2018.
His oldest son’s burial place in Sydney is very important to him and to his family. His inability to visit that site has been emotionally very difficult for Mr Atua. Preventing him from visiting that site in the future by revoking his visa would be emotionally and culturally heartbreaking for him.
Mr Atua and his brother began a scaffolding business in 2018 while on bail, which his brother has maintained.
This consideration weighs heavily in favour of revoking the cancellation of his visa.
Extent of impediments if removed from Australia
Mr Atua is 25 years old and in good health. He speaks English and Samoan. There would be no language barrier if he is returned to New Zealand. He has not returned to New Zealand since arriving in Australia in 2002 when he was six years old.
He has prospects of working given his scaffolding experience and qualification. The New Zealand government provides welfare equivalent to Centrelink and has a tax funded health care system, meaning that residents receive free or subsidised care.
Mr Atua will have no close family support if he returns to New Zealand. He will find it very hard to adjust to and lead a life away from his partner, children and his close-knit extended family and his involvement in the church with his family.
This factor weighs moderately in favour of revoking the visa cancellation.
Conclusion
The considerations weighing in favour of revocation of the visa cancellation decision outweigh the consideration in favour of non-revocation. Accordingly, I find that there is another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii).
DECISION
The reviewable decision made on 15 September 2020 is set aside, and in substitution the mandatory visa cancellation is revoked.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................

Associate
Dated: 9 December 2020

Dates of hearing: 30 November 2020 and 2 December 2020

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Lewis & Bollard

Solicitors for the Respondent: Ms C Saunders, Minter Ellison

[2020] AATA 4973

9 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Dates of hearing:	30 November 2020 and 2 December 2020
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Lewis & Bollard
Solicitors for the Respondent:	Ms C Saunders, Minter Ellison