Ausage Mapuilesua (Migration)

[2019] AATA 6774

Ausage Mapuilesua (Migration) [2019] AATA 6774 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Laa Ausage Mapuilesua

CASE NUMBER:  1908335

HOME AFFAIRS REFERENCE(S):          BCC2018/4233141

MEMBER:Amanda Mendes Da Costa

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 25 September 2019 at 1:28pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – extensive criminal history – offences against the person – significant levels of violence involved – consideration of discretion – seriousness and extensiveness of offending – contravention of a Youth Supervision Order and conditions of bail – positive changes to behaviour – lack of further offending since August 2018 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that given the serious, violent and repetitious nature of the applicant’s offending and his convictions, his presence in Australia is or may be, or would be or might be, a risk to the health and safety of the Australian community or a segment of the Australian community. The delegate further found that the grounds for cancelling the applicant’s visa outweigh the reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mariah Tapaea Teriyaki, Emily Hurley, Ausage Laa and Aoga Ausage.

4. The Tribunal notes that the applicant’s parents and siblings travelled to Melbourne from Sydney to attend the hearing and support the applicant.

5. The applicant provided the following documents to the Tribunal for the purpose of the review:

   ·     Reference of Jeevana KC, dated 29 July 2019.

   ·     Department of Justice and Community Safety report of Elizabeth Hill, undated.

   ·     Reference of Emily Hurley, Parkville College, undated.

   ·     Reference of Tia Suemai, Charis Mentoring, dated 24 July 2019.

   ·     Statement of Mariah Tapaea Teriyaki dated 27 July 2019.

   ·     Statement of Faigalotu Laa, dated 14 August 2019.

   ·     Statement of Anahera Herbert, dated 12 August 2019.

6. The Tribunal informed the applicant that it had read the material he provided to the Tribunal, together with the Department’s file and had viewed his Facebook entry.  The Tribunal notes that the applicant’s Facebook page shows him in various social settings with friends and family and that there was nothing remarkable about these postings.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Consideration of Claims and evidence

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561 at [41].

10. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held at [94] that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

11. Following the grant of the applicant’s visa on 26 July 2016, the Department received a record of the applicant’s criminal offending in Australia as at 28 August 2018. 

12. On 8 August the Youth Parole Board of Victoria ordered the release of the applicant from custody after the application of remissions.  Youth Justice Files indicate that the applicant has been subject to the following statutory orders:

    ·     Youth Supervision Order  12 December 2016 to 11 February 2018

    ·     Youth Justice Centre Order  24 July 2017 to 13 May 2018

    ·     Youth Justice Centre Order  24 July 2017 to 23 January 2018

    ·     Youth Parole Order   18 September 2017 to 13 May 2018

    ·     Youth Justice Centre Order  22 November 2017 to 21 January 2018

    ·     Youth Justice Centre Order  30 January 2018 to 29 April 2018

    ·     Youth Justice Centre Order  19 February 2018 to 1 August 2018

    ·     Youth Justice Centre Order  18 July 2018 to 30 September 2018

13. The Tribunal notes that the Youth Justice Centre Order made 24 July 2017 to 13 May 2018 was made after a finding that the applicant had breached his Youth Supervision Order made 12 December 2017.   Apart from the Youth Justice Centre Order made 19 February 2018 (Melbourne Magistrate’s Court) the remaining orders were made by the Children’s Court at Melbourne.

14. The applicant was initially detained at the Parkville Youth Justice Centre, but spent the latter part of his sentence at the Malmsbury Youth Justice Centre.

15. On 13 December 2018 the Department sent the applicant an NOICC of his visa.  This Notice was sent to the address of the applicant’s parents in Sydney, where the applicant had been living.  The Notice was returned to the Department unclaimed on 11 January 2019 and the applicant made no response to the NOICC.

16. The applicant told the Tribunal that the reason for his failure to respond to the NOICC was because he had left Sydney and was already living in Melbourne when the NOICC was sent to him at an address in Sydney.

17. The Tribunal accepts that the applicant subsequently became aware of the cancellation of his visa when he received the delegate’s decision, a copy of which was provided to the Tribunal by the applicant.

18. The applicant claimed in his oral evidence that he would have fully participated in the cancellation process if he had become aware of the NOICC.  The Tribunal accepts this evidence.

19. The Tribunal notes that on 13 August 2019 it received a non-disclosure certificate pursuant to s.376 of the Act.  The Department notified the Tribunal that s.376 applied to information in its file which identified the names and contact details of third parties who had provided information about the applicant’s whereabouts to the Department.  The ground for the non-disclosure was the fact that the information was given to the Department in confidence.

20. The Tribunal advised the applicant during the hearing that it had received the certificate, which it considered valid.  The Tribunal noted that the applicant had made an application to it pursuant to s.362A of the Act for access to written materials in the Department’s files and although the names and contact details were not available to him, the text of the information in the Department’s file had been made available to him.  The Tribunal further advised that it considered that the names and contact details of the third parties was not relevant to the Tribunal’s decision in respect of the cancellation of the applicant’s visa.

21. During the hearing, the Tribunal provided the applicant with a copy of the delegate’s decision and asked him to look at his criminal record as set out in the decision.  After looking at the decision, the applicant told the Tribunal that he accepted his history of criminal offending as set out in this decision.   When questioned about the circumstances of each of the offences he committed, the applicant explained that the finding of guilt (without conviction) by the Children’s Court on 12 December 2016 was as a result of an assault by him one night when he was out with friends.  He had been drinking that night and was unable to remember the circumstances of the assault.

22. The applicant further explained that the conviction on 22 November 2017 for assault with a weapon related to an assault he committed whilst detained at the Parkville Justice Centre.  He attacked another detainee after he fought with one of the applicant’s friends.  The applicant said he assaulted this detainee with a table tennis bat.  When asked by the Tribunal about the reason for this attack, the applicant said that he was mad at him for assaulting his friend.

23. The applicant explained that the conviction for without authorisation/excuse enter a private place on 24 July 2017 was the result of him going into a section of the youth justice centre in Parkville without permission, during a “riot” at the Centre.

24. In relation to the conviction for robbery on 19 February 2018, the applicant said this involved him taking “stuff from a person” and assaulting him. 

25. The Tribunal explained to the applicant that it did not seek to concentrate solely on his criminal offences during the hearing but that it would assist the Tribunal in making its decision, to understand the circumstances of his offending behaviour.

26. Apart from the four above offences, the applicant said that he was unable to recall the circumstances in which the remainder of his offending was committed. The Tribunal queried the applicant about the reason for his inability to remember the details of the remainder of his criminal offending but he said he was unable to provide any reason.

27. Following the hearing the applicant provided a National Police Check from the Australian Federal Police dated 30 August 2019 which shows that the applicant’s criminal history is as set out in paragraph 31 of this decision.

28. The Tribunal was not provided with any agreed facts, police brief of evidence or transcript of the court proceedings in which the applicant’s criminal charges were heard and determined.  Save for the applicant’s brief descriptions about the circumstances of four of the offences, the Tribunal is not aware of the precise content of the allegations of the offending that the court relied upon in making the findings of guilt and sentencing the applicant.  The Tribunal was also not provided with any pre-sentence reports or the reasons for sentencing.

29. The Tribunal notes that in her report, Ms Hill refers to the sentencing remarks of the Magistrate who sentenced the applicant on 18 July 2018 to a Youth Justice Centre Order.  According to Ms Hill the Magistrate made the following sentencing remarks:

    This sentence reflects the remarkable rehabilitation which Laa has demonstrated … that he has spent an extensive time in custody including the Grevillea Unit and the outstanding reference from staff at Malmsbury.

30. The Tribunal notes that Ms Hill does not provide any further context for the offending behaviour which led to this sentence.     

31. On the basis of the information contained in the delegate’s decision and the applicant’s National Police Check, the Tribunal is satisfied that the applicant has been found guilty of the following offences:

32.      12 December 2016	Affray (common law) (2 charges) Commit indicatable offence whilst on bail Intentionally cause injury Assault in company Recklessly cause serious injury Attempt to commit indicatable offence Intentionally cause serious injury Dishonestly undertake retention of stolen goods	Without Conviction Released on a Youth Supervision Order – 14 months
24 July 2017	Breach of Youth Supervision Order	Proven. No further penalty.
24 July 2017	Breach of Youth Supervision Order (recklessly cause serious injury).	Order cancelled. Convicted Detained in a Youth Justice Centre – 5 months
24 July 2017	Breach of Youth Supervision Order (affray)	Detained in Youth Justice Centre – 6 months
24 July 2017	Recklessly cause serious injury	Convicted Detained in a Youth Justice Centre – 6 months
24 July 2017	Intentionally cause injury (2 charges)	Convicted Detained in a Youth Justice Centre 3 months
24 July 2017	Affray	Convicted Detained in a Youth Justice Centre – 5 months
24 July 2017	Assault in company	Convicted Detained in a Youth Justice Centre – 2 months
24 July 2017	Armed robbery	Convicted Detained in a Youth Justice Centre – 4 months
24 July 2017	Affray (common law)	Convicted Detained in a Youth Justice Centre – 4 months
24 July 2017	Robbery	Convicted Detained in a Youth Justice Centre – 3 months
24 July 2017	Without authorisation/excuse enter a private place	Convicted Detained in a Youth Justice Centre – 3 months
24 July 2017	Criminal damage	Convicted Detained in a Youth Justice centre 1 month.
22 November 2017	Assault with a weapon	Convicted Detained in a Youth Justice Centre – 2 months.
30 January 2018	Affray (common law)	Convicted Detained in a Youth Justice Centre – 3 months
19 February 2018	Contravene a conduct condition of bail	Convicted Detained in a Youth Justice Centre – 1 month
19 February 2018	Commit an indictable offence whilst on bail and contravening a condition of bail	Convicted Detained in a Youth Justice Centre – 1 month
19 February 2018	Recklessly cause injury	Convicted Detained in a Youth Justice Centre – 6 months.
19 February 2018	Robbery (2 charges)	Convicted Detained in a Youth Justice Centre – 6 months.
1 June 2018	Criminal damage	Convicted Adjourned to 31.5.19. Compensation of $121 to be paid.
18 July 2018	Criminal damage	Convicted Detained in a Youth Justice Centre – 1 month.
18 July 2018	Armed robbery	Convicted Detained in a Youth Justice Centre – 74 days.

1. The Tribunal finds that the applicant’s criminal behaviour amounted to circumstances that demonstrate the existence of grounds for the cancellation of the applicant’s visa.

2. In making the above finding, the Tribunal has taken into account that the offences were mostly ‘offences against the person’ and not property offences; that the offences involved significant levels of violence; were likely to have engendered fear in the applicant’s victims and any persons who witnessed his actions; and showed a callous disregard for the safety and well-being of others.

3. The Tribunal is satisfied that given the serious, violent and extensive nature of his offending, the applicant’s presence in Australia is or may be, or would be or might be, a risk to the health and safety of the Australian community or a segment of the Australian community.

4. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

5. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   Evidence

6. Ms KC is a friend of the applicant and Ms Teriyaki.  In her reference, Ms KC attests to the applicant and his partner living with her and her husband since May 2019.  Ms KC describes the applicant as being loving, respectful and supportive of his partner and to the other occupants of the home.  Ms KC has found the applicant to be a cheerful, friendly, helpful and kind-hearted person.

7. Ms Hill was the applicant’s Youth Justice Case Manager at the Department of Justice and Community Safety (Youth Justice) between November 2017 and August 2018.

8. In her report, Ms Hill observes that whilst in custody:

   ·     The applicant engaged with a Pasifika Liaison Officer on a fortnightly basis who observed that the applicant engaged well with him and was respectful.

   ·     The applicant was observed by staff to be proud of his Samoan heritage and whilst in custody celebrated cultural events.

   ·     The applicant participated in the Iron Armour Program which involves the participants in playing the game of rugby.  Staff facilitating the program identified the applicant as a role model and leader in this program.

   ·     The applicant engaged in rehabilitation programs at the Malmsbury Youth Justice Centre.  Custodial reports indicate that the applicant performed ground maintenance work.  In order to be eligible for this program a participant is required to attend an interview, undertake training and successfully complete a behavioural monitoring assessment program.  After being assessed as eligible, the applicant participated in ground maintenance work for approximately two months prior to his release from custody in August 2018.

   ·     The applicant engaged positively and respectfully with youth justice staff. The applicant participated in a positive manner in the Adolescent Violent Intervention (AVI) Program, which is operated by the Youth Health and Rehabilitation Service.  This program, which is conducted in a group setting, seeks to address violent offending among adolescent offenders and thereby reduce recidivism and the risk to the wider community.  

   ·     The applicant engaged positively with a psychologist from the Youth, Health and Rehabilitation Service on a weekly basis.  The applicant attended 45 individual sessions from March 2017 to April 2018, during which he addressed his offending behaviour, emotional regulation, alcohol and drug use, developing victim insight and using strategies as an alternate to exhibiting aggressive behaviours.  The applicant’s individual sessions with a psychologist ceased when he was assessed as suitable to participate in the AVI program.

9. Ms Hurley is the Campus Co-ordinator of the Park Street Flexible Learning Centre at Parkville College.  The Tribunal notes that Parkville College is a specialist Victorian Government School which provides education to students who are or have been detained in custody.  The applicant attended this school whilst he was in custody.

10. In her reference, Ms Hurley attests to the applicant’s ability to reflect on his past behaviour and indicates that he has shown great remorse for his past actions.  She describes him as having made real changes in his life, is working hard and building a loving relationship with his partner.  Ms Hurley further notes that the applicant has contributed to the local community through rugby and his desire to support other young people.

11. In Ms Hurley’s opinion, the applicant has made meaningful changes to his life over a significant period of time.

12. Mr Suemai is the Director and Co-Founder of Charis Mentoring, a youth organisation assisting Pasifika young people in the Australian community.  In his reference, Mr Suemai attests to the applicant being hard working, respectful and extremely reliable.  In Mr Suemai’s opinion, the applicant had demonstrated leadership qualities and a passion for learning and a dedication to strive to be a better person.

1. Mrs Laa is the applicant’s mother. In her statement, she attests to the applicant’s determination to stay away from trouble, motivated in part by the financial needs of his parents who have three other children to financially support.

2. In Mrs Laa’s opinion the applicant now wants to work hard and make a positive contribution to Australian society. She also believes that if he remains in Australia her son will have the support of his family which will have a huge impact on his mental health.  Mrs Laa expresses concern  about her son’s ability to cope without his family if his visa is cancelled and he returns to live in New Zealand.

3. Mrs Herbert is the mother of Ms Teriyaki.  In her statement she attests to the positive change in her daughter’s presentation since entering a relationship with the applicant and his care of her daughter.

   Applicant’s evidence

4. The applicant told the Tribunal that he was born in New Zealand, is of Samoan heritage and is now 20 years of age.  He arrived in Australia with his parents and siblings when he was 11 or 12 years of age.  He is the eldest of three siblings.  The family lived in Melbourne and the applicant attended school in Craigieburn and Broadmeadows.  He completed Year 10 and left school mid-way through Year 11.  After leaving school the applicant continued to live at home although he did not engage in any further studies or paid employment.

5. The applicant said he had a close and loving relationship with his family and has never experienced any difficulties when living with his parents and siblings.  This was confirmed by his father in his evidence at the hearing. The evidence of the applicant’s father, sister and Emily Hurley is considered later in this decision.

6. The applicant told the Tribunal that his criminal offending occurred whilst he was in the company of friends, although he did not hold them responsible for his own actions. The applicant said that he had not committed a criminal offence since early 2018 and he was determined not to return to the youth justice system or a prison.  He said he had no pending criminal matters and this is confirmed by his National Police Check.

7. After release from Malmsbury Youth Justice Centre, the applicant immediately returned to Sydney to live with his family.  He obtained employment within a couple of weeks of this move, working full-time as a storeman in a cold storage facility.

8. In November 2018 he commenced an online relationship with Ms Teriyaki, who made a surprise visit to Sydney to meet him in February 2019.  The relationship has continued since their initial meeting and after a weekend visit to Melbourne together, they decided to relocate from Sydney in March 2019.  They both obtained employment in Melbourne. Ms Teriyaki obtained a full-time job in a hotel and the applicant  obtained two casual jobs – one as a storeman in a warehouse and the other in a large commercial bakery, packing products.  Although these jobs were casual, the hours worked by the applicant amounted to the equivalent of a full-time job.

9. The applicant acknowledged to the Tribunal that his prior criminal offending was serious in nature.  When questioned by the Tribunal about whether there had been any changes in his attitude to offending since the commission of his last offence, he said that he had realised whilst in the youth justice centre that he was wasting his life.  He explained that he realised that if he changed his behaviour, he could have a job, buy a car and be free to socialise.  The applicant told the Tribunal that at that point he made a promise to himself that he would not return to custody.  He also wished to set a positive example to his younger siblings and his future children and was aware of the impact of his criminal behaviour on his victims.

10. The Tribunal questioned the applicant about the professional assistance he had received whilst detained in the youth justice system, particularly the psychological and counselling support.  He said that this had assisted him with dealing with feelings of anger and frustration.  After his release from Malmsbury Youth Justice Centre he had not sought or received any further professional help.  The applicant explained that he didn’t consider he required any further help as he had completed everything that he had to do whilst detained in the youth justice system and if required he deals with difficult and emotional situations by thinking of the things he previously discussed with his psychologist.  He considered that he had learned to communicate better with others whilst detained in the youth justice system and his behaviour had changed and improved there.

11. At the conclusion of its questioning of the applicant, the Tribunal gave him an opportunity to any further information he wished to tell the Tribunal.

12. The applicant described Ms Teriyaki as a very positive influence in his life.  He said that she helped him with everything and was a very positive person.  The applicant told the Tribunal that Ms Teriyaki had developed a close relationship with his parents and siblings and if his visa was not cancelled the two of them planned to stay in Melbourne.  He viewed the relationship as a long-term one and wanted to stay in Australia where he considered there were better economic opportunities for himself and his future children.

    Evidence of Mariah Tepaea Teriyaki  

13. Ms Teriyaki is the applicant’s partner and a national of New Zealand.  She told the Tribunal that she became aware of the applicant via social media in late 2018.  They communicated via social media until February 2019 when Ms Teriyaki travelled to Sydney to meet the applicant and his family.  She said that she and the applicant had been in a relationship since her arrival in Australia in February 2019.  Ms Teriyaki initially came to Australia to visit the applicant, but quickly decided to leave her employment in New Zealand and relocate to Australia, to be with the applicant.

14. Ms Teriyaki explained that after a weekend spent in Melbourne, she and the applicant decided in March 2019 to move to Melbourne.  They had been living in Melbourne until the applicant was placed in immigration detention in July 2019.

15. After arriving in Melbourne she and the applicant obtained employment.  Ms Teriyaki is currently employed on a full-time basis as a guest service agent at a hotel in the Melbourne CBD.

16. The Tribunal questioned Ms Teriyaki about her knowledge of the applicant’s criminal history.  She said that at the end of November 2018 she noticed some comments on social media about the applicant’s previous offending behaviour.  When she spoke to the applicant about these comments, he explained that he had got into trouble by fighting and having the wrong people as his friends.  She said when telling her about his criminal offending the applicant didn’t seek to blame others and took responsibility for his own actions.  She said that it was difficult for the applicant to discuss this matter with her as he obviously didn’t want to scare her off.

17. Ms Teriyaki described the applicant as a good person who was soft and caring.  She has never observed him  behaving in a violent manner either when she was with him or with others.  She said she was not fearful of him and he had never behaved towards her in a threatening or frightening manner.

18. In answer to the Tribunal’s questions, Ms Teriyaki said to her knowledge the applicant had not been involved in any criminal activity since his release from the youth justice centre in August 2018 and had no pending criminal matters.

19. Ms Teriyaki told the Tribunal that as her relationship was a long-term one, she would return to New Zealand with the applicant if his visa is cancelled by the Tribunal.  Although she was not aware whether the applicant has any family in New Zealand, her family is living there.

20. In her statement Ms Teriyaki sets out the history of her previous relationship in New Zealand and the circumstances in which she met the applicant and the development of their relationship.  She describes the applicant as a loyal and loving person who cares for her and his family. Ms Teriyaki views their relationship as a long-term one.

21. In Ms Teriyaki’s opinion the applicant has acknowledged his past mistakes and has taken responsibility for them.

    Evidence of Emily Hurley

22. Ms Hurley has 12 years’ experience as a secondary school teacher.  Ms Hurley has been teaching at Parkville College and is currently involved as the co-ordinator and teacher at Park Street Flexible learning centre, which is a campus for students who have been released from youth justice or secure welfare centres.

23. Ms Hurley told the Tribunal that she has known the applicant since 2015 and previously taught him at the school in the Parkville Youth Justice Centre.  Ms Hurley described the applicant as a respectful and kind student with no behavioural difficulties within the classroom environment.  She said that any difficult behaviour demonstrated by him outside the classroom whilst he was detained in the youth justice centre was in part due to the atmosphere within the centre.  Ms Hurley told the Tribunal that she had observed a significant change in the applicant’s behaviour in the last two years he was at the youth justice centre.  He became a role model for other young men in the centre and involved them in programs within the centre.

24. Ms Hurley explained that after the applicant returned to Melbourne in March 2019 he contacted her and requested assistance with his resume as he was looking for work.  She met his current partner and discussed with them the applicant’s suitability to take part in a pilot program being operated by Parkville College and John Holland Limited.  This project aims to find employment for young people who have been involved with the youth justice system. 

25. Ms Hurley said that she had been in regular contact with the applicant and his partner since March 2019.  From her discussions with them and observations of the applicant’s behaviour she considered that he had changed his life in the past 12 months and was unlikely to reoffend.  Ms Hurley further stated that it was difficult for her to reconcile the applicant’s previous and serious criminal offending with his current behaviour and attitudes.  When questioned by the Tribunal about the reasons for such offending she opined that he had committed these offences with friends and that the influence of peers is often a significant factor in youth offending.  In Ms Hurley’s opinion the cancellation of the applicant’s visa and his return to New Zealand would have a profound effect on him and his rehabilitative achievements in the past 12 months.

    Evidence of Ausage Laa

26. Mr Ausage is the applicant’s father and a national of New Zealand.  He told the Tribunal that he came to Australia with his family in 2011.  This was primarily for employment and financial reasons.  They lived in Melbourne for approximately six years and when the applicant was sentenced to a period of detention in the Parkville Youth Justice Centre, the remainder of the family moved to Sydney.

27. Mr Ausage Laa told the Tribunal that he did not notice anything unusual about his son’s behaviour when the applicant was living at home and that he had always had a good relationship with his family.   

28. Mr Ausage said that his son has learned from his mistakes and had changed his behaviour and attitudes whilst detained in the youth justice centre.  He explained that after his release in August 2018, his son had returned to Sydney to live with his family.  During the six months he lived with them (until his return to Melbourne in February 2019 the applicant obtained employment, attended church and did not engage in any criminal behaviour.  Mr Ausage described his son’s relationship with Ms Teriyaki as good and said he was happy and proud of them.

29. Mr Ausage also told the Tribunal that he worried about the prospect of the applicant returning to New Zealand if his visa was cancelled.  He explained that the applicant did not have any close relatives in New Zealand and would be separated from his parents and siblings, with whom he has a close relationship.

    Evidence of Aoga Ausage

30. Ms Ausage is the applicant’s younger sister who lives in Sydney with their parents.  She told the Tribunal that she considered her brother deserved a second chance, given he had changed his behaviour since being released from the youth justice centre in August 2018.

31. Ms Ausage said that it would be very hard for the applicant’s parents and siblings if his visa was cancelled and he returned to New Zealand.  She explained that the applicant had made plans for his future in Australia and had counselled her not to follow his prior offending behaviour.

    Discretionary considerations

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

32. The applicant initially arrived in Australia on 16 December 2011 as the holder of a Subclass 444 (Special Category) visa. He subsequently departed Australia on 28 June 2014 before returning on 26 July 2014.

33. The purpose of the applicant’s travel to and stay in Australia was to accompany his family to Australia, to gain an education and to live and work in this country.

34. The applicant has lived with his family in Australia since their initial arrival.  He was educated in Australia and has formed a relationship with a New Zealand citizen who is now living in Australia.

35. In the past 12 months the applicant has gained paid employment in both Sydney and Melbourne.  If the applicant’s visa is not cancelled he and his partner intend to continue living and working in Australia.

36. The Tribunal accepts that the applicant has gained employment and has been living in Australia with his family and lately his girlfriend, Ms Teriyaki.  Although it is satisfied that the applicant would prefer to remain in Australia, it is not satisfied that the applicant has a compelling need to stay in Australia and it is satisfied that he could relocate to New Zealand with Ms Teriyaki.

37. These considerations weigh in support of cancellation of the visa.

    The extent of compliance with visa conditions

38. The applicant’s Subclass 444 (Special Category) visa does not have any conditions attached to it.

39. This consideration is neutral and weighs neither in support of nor against cancellation of the applicant’s visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to New Zealand he will be separated from his parents and siblings unless they travel to New Zealand to visit him.  He is likely in the event of cancellation to miss family celebrations and participating in other significant events with his parents and siblings.

41. The Tribunal further accepts that the applicant will have limited family support in New Zealand although it observes that Ms Teriyaki’s family is living in New Zealand and that the applicant would have the support of at least her mother, Mrs Herbert.

42. Whilst the Tribunal acknowledges that the cancellation of the applicant’s visa would disrupt the plans he and Ms Teriyaki have made for their future in Australia, it notes that she is prepared to return to New Zealand with the applicant and to make a life with him there.

43. The Tribunal further acknowledges that the applicant’s family is likely to suffer emotional and psychological hardship if the applicant’s visa is cancelled and he returns to live in New Zealand.  The Tribunal accepts that the applicant’s immediate family has a close and loving relationship with him and they would miss his company and participation in family events if he leaves Australia.

44. On balance, the Tribunal considers that the degree of hardship that may be caused weighs against cancellation.

    Circumstances in which the ground of cancellation arose

45. The applicant’s visa was cancelled in circumstances where the applicant was found guilty of or convicted of multiple serious criminal offences including recklessly cause serious injury, armed robbery (two convictions), affray (two convictions) and assault with a weapon.

46. The applicant was placed on a Youth Supervision Order due to serious offences including recklessly cause serious injury, intentionally cause serious injury, affray and assault in company.  The applicant was subsequently found guilty of breaching this order and he was sentenced to a period of incarceration in a youth detention centre.

47. The applicant has also been found guilty by a Court of committing an indicatable offence whilst on bail and contravening a condition of bail.  The majority of the applicant’s criminal charges have been heard and determined by the Children’s Court at Melbourne.  One set of charges has been heard and determined by the Magistrate’s Court at Melbourne.

48. The Tribunal finds that the applicant’s visa was cancelled due to his criminal offending which was repetitive and extensive over a three year period and that the applicant had not responded to a Youth Supervision Order and conditions of bail.  The Tribunal has given these matters significant weight.

49. This consideration weighs in support of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

50. There is no evidence before the Tribunal which indicates that the applicant has demonstrated any adverse behaviour towards the Department.

51. This consideration weighs against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

52. There is no evidence before the Tribunal to indicate that if the applicant’s visa is cancelled, there would be any consequential cancellations under s.140 of the Act.

53. This consideration is neutral and weighs neither in support of nor against cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

54. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely because as a New Zealand citizen he will be able to return to New Zealand. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

55. This consideration weighs against cancellation of the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

100.   The applicant has not made any claims in relation to Australia’s international obligations, including non-refoulement and based on the evidence before the Tribunal, it finds that the applicant has no children.

101.   This consideration is neutral and weighs neither in support of nor against cancellation of the visa.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

The applicant’s visa is not a permanent one and there is no evidence before the Tribunal which indicates that the applicant has been the holder of any other visa in Australia.

102.   This consideration is neutral and weighs neither in support of nor against the cancellation of the visa.

Any other matters

103.   The Tribunal has taken into account the applicant’s current age (20 years) and his relatively young age when his criminal offences were committed.  The Tribunal also acknowledges the applicant’s expression of remorse for his victims in his oral evidence and his refusal to blame his co-offenders for his own offending.  The Tribunal has further taken into account the lack of any further offending the by applicant since his release from youth justice custody in August 2018 and notes that he spent 11 months in the community until he was placed in immigration detention in July 2019.

104.   The Tribunal has considered the documentary and oral character evidence regarding the applicant, which shows that he commenced making changes in his behaviour and attitudes to re-offending during the latter part of his detention in the Malmsbury Youth Justice Centre and this has continued since his release from youth justice detention.  The most significant aspects of this change are his failure to re-offend, his relationship with Ms Teriyaki and his obtaining of employment in both Sydney and Melbourne.

105.   The Tribunal has taken into account that the applicant has lived in Australia for over nine years and received his secondary schooling in Australia.  His immediate family is living in Australia and if he returned to New Zealand he would do so with limited family support and no employment.  However against these considerations the Tribunal has balanced the applicant’s age, his previous ability to find work, the support of Ms Teriyaki’s family and the considerable support that Ms Teriyaki is prepared to give the applicant.

106.   The Tribunal acknowledges that during the hearing, the applicant expressed concern for his victims and remorse for his actions.  However, the Tribunal is concerned about the applicant’s limited explanation of the circumstances of his criminal offending.  The Tribunal does not find the applicant’s claim that he is only able to recall the circumstances of four of the offences as credible or convincing.  The Tribunal notes that the applicant offered no explanation for his claimed poor memory and the Tribunal considers that given the significant number of court appearances by him and the custodial sentences imposed on him, the applicant should have remembered the circumstances of the offending even if he could not remember other details such as the dates of the offending.  The Tribunal considers by claiming to be unable to recall the circumstances of the majority of his offending, the applicant sought to minimise the severity of his offending with the Tribunal.

107.   The Tribunal accepts that the applicant has no pending criminal matters and has not committed any criminal offences since his release from youth justice detention in August 2018.  It also accepts the evidence of the applicant’s partner, father, sister and Ms Hurley that the applicant has made positive changes to his behaviour whilst at Malmsbury Youth Justice centre and since his release from youth justice detention.

108.   Against this evidence, the Tribunal has balanced the seriousness and number of the applicant’s criminal offending which included the following aggravating factors:

·the use of weapons;

·the use of violence against others;

·placing members of the public in fear for their safety;

·re-offending whilst on bail and in custody; and

·the breaching of court orders including bail conditions.

109.   The Tribunal has given significant weight to these factors in making its decision.

110.   Whilst the Tribunal accepts that the applicant has made positive changes to his life since he was released from youth justice detention in August 2018, the Tribunal has taken into account that these changes were of less than 12 months’ duration when he was taken into migration detention and had not been sustained over a lengthy period.

111.   Considering the circumstances as a whole, and particularly the seriousness and extensiveness of the applicant’s offending behaviour, the Tribunal has concluded that the visa  should be cancelled.

DECISION

112.   The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Amanda Mendes Da Costa
Member