Fakauafusi and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1017
•4 July 2017
Fakauafusi and Minister for Immigration and Border Protection (Migration) [2017] AATA 1017 (4 July 2017)
Division: General Division
File Number(s): 2016/4017
Re:Maueofa Fakauafusi
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President SA Forgie
Date:4 July 2017
Place:Melbourne
The Tribunal decides to:
affirm the decision of a delegate of the respondent dated 6 July 2016 not to revoke the decision to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.......[sgd]............................................................
Deputy President S A Forgie
Catchwords – MIGRATION – refusal to revoke decision cancelling applicant’s visa – whether there is another reason why the original decision should be revoked – decision affirmed
Catchwords – PRACTICE AND PROCEDURE – EVIDENCE – treatment of charges withdrawn or struck out
Legislation
Evidence Act 1995 ss 91, 92
Migration Act 1958 ss 197A, 499, 501, 501CA
Direction No.65 made under s 499 of the Migration Act 1958
Cases
DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Lawrence v The Queen [2007] ACTCA 10
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545
R v Vonarx [1995] VSC 216; [1995] VICSC 216
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Secondary Materials
REASONS FOR DECISION
Deputy President S A Forgie
The applicant, Mr Maueofa Fakauafusi, held a Class TY Subclass 444 Special Category (Temporary) visa permitting him to enter and remain in Australia. On 6 July 2016, a delegate of the Minister cancelled Mr Fakafousi’s visa. He did so under s 501(3A) of the Migration Act 1958 (Migration Act) when he was satisfied that Mr Fakauafusi did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) and Mr Fakauafusi was serving a sentence of imprisonment on a full-time basis in a custodial institution. As required by s 501CA, the Minister invited Mr Fakaoufusi to make representations regarding the revocation of the decision that he had made. Mr Fakauafusi responded to the Minister’s invitation but the Minister declined to revoke the earlier decision to cancel his visa. Mr Fakauafusi lodged an application in this Tribunal to review the Minister’s decision. For the reasons that I give in the following paragraphs, I have decided to affirm the decision not to revoke the decision to cancel Mr Fakauafusi’s Class TY Subclass 444 Special Category (Temporary) visa.
BACKGROUND
Cancellation of Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(c) is relevant for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, only s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. As Mr Fakauafusi was sentenced to a term of 18 months’ imprisonment on being convicted of an offence of Aggravated Burglary with an offensive weapon, two offences of False Imprisonment and one offence of Intentionally Cause Injury, he has a substantial criminal record by virtue of that provision. At the time the Minister’s delegate made the decision, Mr Fakauafusi was also serving a sentence of imprisonment on a full-time basis for those offences, which are offences under State law.
Representations may be made to revoke cancellation decision
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:
“The Minister may revoke the original decision 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.”
[1] Migration Act; s 501CA(1)
On 5 February 2016, Mr Fakauafusi sought revocation of the Minister’s decision.[2] He did so in accordance with the invitation extended to him under s 501CA(3)(b)[3] and has satisfied the requirements of s 501CA(4)(a). In the circumstances of this case, Mr Fakauafusi cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[4]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[5]
[2] T documents; T2 at 64-65
[3] The Minister is obliged to extend that invitation to him after making a decision under s 501(3A).
[4] [2016] FCA 1166
[5] [2016] FCA 1166 at [38]
Early life
I accept Mr Fakauafusi’s evidence, which was not contradicted, regarding his family and his early childhood. On the basis of his evidence, I find that he was born in New Zealand in 1992. His biological mother was an alcoholic and drug user. He was adopted but felt that he was never accepted. Between the ages of five and seven, was subjected to sexual abuse and exposed to extreme family violence. He and his family came to Australia in 1998 when he was six years of age. He spent time “hanging around with the wrong crowd” until he was introduced to boxing at eight or nine years of age. He has continued with boxing ever since.
Mr Fakauafusi dropped out of school in Year 7. At the time, he felt a lot of frustration. He first got into trouble with the law when he was about ten years of age when he took $2 from a police officer’s wallet.
Mr Fakauafusi left Australia in January 2009 when he was 17 years of age and returned to New Zealand where he lived for the next three years. His adoptive mother had told him to do that so that he could make a fresh start. He stayed with his grandparents in their house. In all, there were some 13 family members living together in the house. Mr Fakauafusi continued boxing in New Zealand.
Mr Fakauafusi returned to Australia in February 2012 when he was 20 years of age. He did so because he had met an Australian girl of Samoan heritage while he was in New Zealand and he wanted to continue his boxing career in this country. Initially, he started training but then he fell into a “bit of trouble” in the form of “drugs and stuff like that”. Mr Fakauafusi and his partner had a daughter born in January 2013. He felt that there was a lot of pressure on him. He and his partner were living in her parents’ home. Her parents had high expectations that he would provide for the whole family. At the time, he was working as a fork lift driver while paying the family’s rent and bills but not fitting into his partner’s family. He enjoyed the work and remained in that job for 2½ years.
Events came to a head at the beginning of 2013 when he and his partner’s step father had a big argument that became violent. He was asked by the family not to see his own daughter. To Mr Fakauafusi’s mind, that was when things started to go bad for him and they did not start to pick up again until 2014. At first, he lived in his car but things were getting worse. He started taking drugs because he was too depressed and needed something to make him forget everything. At that stage, he was still sleeping in his car but managing to get to work. He travelled to New Zealand for four or five days in October 2013 to see if he could live there but he decided that he could not when his daughter was in Australia. Following his return to Australia, Mr Fakauafusi has remained here continuously except from 10 to 14 October 2013.[6]
[6] T documents; T2 at 68
Convictions
As an adult, Mr Fakauafusi has been convicted of three sets of offences in Victorian courts and of one set as a juvenile. There have been other offences in relation to which Mr Fakauafusi has been charged but those charges have either been struck out or withdrawn. I have referred to those charges and to those matters in relation to which Mr Fakauafusi has been investigated but not charged in italicised font in the following table. I will come back to the relevance, if any, that they have in deciding the issues in this case. I have excluded one incident where the police record notes that all men accused of it were exonerated and no charges laid. That incident occurred on 28 November 2008.
Court
Date (conviction/court appearance)
Date
(offence or incident)Offences
(Charged or investigated)Outcome
(court or police)Sunshine Children’s Court
15 December 2008
13 September 2007
Assault in Company (2), Robbery, Attempt Robbery and Assault with Intent to Rob
Discharged after completing the ROPES programme
Mr Fakauafusi travelled to New Zealand in January 2009
Mr Fakauafusi returned to Australia in February 2012
Mr Fakauafusi’s daughter was born on January 2013
Mr Fakauafusi starts to live in his car after argument with partner’s step father
Melbourne Magistrates’ Court
30 July 2014
1 September 2013
Exceed Prescribed Concentration 3 hours breath drive
Enter intersection – red traffic light
Drive without “L” plates displayedFail to Answer Bail
With conviction, fined an aggregate of $500
Licence cancelled and disqualified for 12 months
Order on licence effective from 1 September 2013.
With conviction, fined an aggregate of $500.
Convicted and discharged.
Melbourne Magistrates’ Court
16 September 2014
29 July 2013
Recklessly cause injury
Theft of motor vehicle
TheftAggregate 4 months imprisonment. Concurrent.
Mr Fakauafusi travels to New Zealand between 10 and 14 October 2013
3 February 2014
Mutual Intervention Orders granted to
Mr Fakauafusi and his partnerVictorian County Court – Melbourne
25 June 2015
7 April 2014
Aggravated burglary – offensive weapon
False imprisonment (2 charges)
Theft
Intentionally cause injuryConvicted.
Aggregate 18 months imprisonment (Declare a period of 292 days to have already been served by way of pre-sentence detention).
Corrections order for 2 years commencing upon completion of imprisonment term.Incident reports between 9 June 2014 and 28 June 2015 set out separately below
Melbourne Magistrates’ Court
8 June 2016
10 June 2015
Riot (common law)
Pleaded guilty
Sentence not known at time of hearingIncident reports from 27 July 2015 to 16 November 2015 set out separately below
Circumstances in which offences committed
Apart from the sentencing remarks in the County Court, the summaries in this section of my reasons are taken from police reports. At the time of the hearing, Mr Fakauafusi had pleaded guilty to the offence of Riot but was yet to be sentenced. The Community Corrections Order (CCO) imposed at the conclusion of his 18 month term of imprisonment began on 7 March 2016 and concluded on 7 March 2018.
A.13 September 2007: Assault in Company
The offence of Assault in Company occurred in company with two other men:
“… Victim walking on footpath … Approached by 2 males requesting change. Victim declined. Males stepped into victims personal space intimidating him. 3rd off approached with clenched fist. Victim fearing assault handed over $7. Off 3 decamped on foot. Victim walked home and contacted police. … “
B. 29 July 2013: Recklessly Cause Injury, Theft of Motor Vehicle and Theft
The police records note that the victim was a taxi driver, who had picked up three men of Islander descent from a hotel. All were aged 20 to 30 years and asked to be driven to McDonalds.
“… The males were aggressive during the taxi trip. When the victim arrived at his destination the male in the front drivers [sic] seat paid for the fare using an EFTPOS debit card. The victim handed the debit card back and the rear passenger punched the victim to the left side of the face. The front passenger also tried to punch the victim but the victim got out of the car and ran to the front entrance to the McDonalds and alerted staff. The victim sustained swelling and bruising to his left eye and left cheek. The 3 males then drove off with the taxi registration … The victim’s personal items were also still in the taxi. The taxi was located unlocked and abandoned in … Nil damage to the taxi. Taxi was towed to the Sunshine Police Station to download footage. Statements and photographs were taken at the scene. CCTV footage obtained from McDonalds and … hotel to be obtained. …”
As I understand Mr Fakauafusi’s evidence, the taxi driver suggested that he had not been properly paid for the trip that he and his friends had taken. The taxi driver locked them in his taxi and called his friends in other taxis to come to help him. That was when Mr Fakauafusi struck the taxi driver and knocked him out and that was when they took the taxi.
C.1 February 2014: Family Violence Event/Incident leading to Intervention Order made on 3 February 2014
The events leading to there being mutual Intervention Orders made in respect of both Mr Fakauafusi and his partner arose out of an argument that they had when his partner saw a Facebook message that he had received from a female friend.
“… The argument has escalated and the resp [Mr Fakauafusi] has punched and slapped the AFM [Affected Family Member; partner] numerous times. AFM has then picked up a glass and thrown it at the resp which has caused a 3 inch laceration to the resp backside. The resp has called 000 for ambulance to attend who in turn have notified police. … [O]nce all information were gathered police ascertained that offences were committed by both parties. …”
D.Aggravated burglary – offensive weapon, False Imprisonment (2 charges), Theft and Intentionally Cause Injury
Mr Fakauafusi pleaded guilty to each of these charges. In his sentencing remarks delivered on 25 June 2015, Judge Coish summarised the facts that led to Mr Fakauafusi’s being charged and that he and the prosecutor had accepted as accurate. They were:
“3. You and two other males committed offences in the course of and following a home invasion on 7 April 2014. The two victims, A … and his girlfriend, … B … were at A’s … residence, a rental property, at … on the night of 6 and 7 April 2014. You went to the victim’s residence to recover a debt. You were armed with knives. When you arrived at the victim’s home A… was asleep and … B had just had a shower. You kicked open the front door to gain entry to the premises (Court 1, aggravated burglary).
4.A … was dragged from his bed. … B was held against her will and subsequently taken from the premises and driven to a Cash Converter’s store (Count 4, false imprisonment). A … was punched and dragged around the house and stabbed in the left side of his back. He was also struck with a hammer (Count 2, causing injury intentionally).
5.As a result of these assaults A … sustained injuries including black eyes, lacerations to the wrist and neck, a stab wound to the back and fractured rib. His hands and feet were also tied with electrical cords (Count 3, false imprisonment). You stole items including a TV, $500 cash, a Playstation, two laptop computers, power tools and a mobile phone (Count 5, theft).”[7]
[7] T documents; T2 at 55-56
Judge Coish went on to explain Mr Fakaufusi’s part in the events:
“22. I find that you had a leading role in this offending.
23.Reports from Jeremy Cummins and I. McKinnon were tendered on your behalf. These reports contain graphic details of your troubled childhood and extensive drug use in more recent times. I accept that the fifth and sixth principles referred to in Verdins case apply on the basis of your post-traumatic stress disorder and I have accordingly taken this into account.
24.You have had difficulties in prison and you have been the subject of disciplinary action. You have completed some courses. I do seek to avoid the risk of your becoming institutionalised.
25.On the material before me I assess your prospects of rehabilitation as cloudy.
26. You are still a young man and I have therefore placed emphasis on the need to assist in your rehabilitation. I accept you would benefit from appropriate supervision and monitoring.
27.Against these matters in mitigation, however, the actions of each of you were very serious indeed. This was a serious example of the offence of aggravated burglary. It was a violent home invasion and you also committed other offences in what appears to have been a frenzied assault upon the victims.
28.As I have already stated I regard you, Fakauafusi, as having taken a leading role. This offending was also your idea. I have taken into account the principles of parity. I note the sentences imposed on co-offenders. I have had regard to respective roles and antecedents and prospects of rehabilitation. I have decided it is appropriate to differentiate to an extent, between co-offenders and particularly you, Fakauafusi, due to your greater role.”[8]
[8] T documents; T2 at 58-59
Mr Fakauafusi explained the events leading up to those set out by Judge Coish. He said that he had been taking methamphetamine. His brother in law (or cousin) owed more than $20,000 to victim A. Victim A had attended at the brother in law’s house with “his bikie friends” to recover it. Part of the recovery strategy involved throwing a Molotov cocktail at the front door. Mr Fakusafusi became upset at this and obtained victim A’s address from his brother in law. He went over to victim A’s house but, at all times, he said that he made sure that victim A was not hurt. He volunteered to drop her off at the Sunshine Station.
In cross-examination, Mr Fakauafusi said that they armed themselves with knives and they entered victim A’s house through the door, which was open. Beyond that, he could not recall anything of the events. He was on heavy drugs at the time and he did not know what was happening back then. Mr Fakauafusi was adamant that victim B was not held against his will. He could recall a girl being with them at Cash Converters but he said that she was not to be hurt. She could have left at any time she liked, he said. He pleaded guilty to the charges because he was with three other people but he was clear that, even though he could remember little of events that night, he was clear that victim B had not been hurt. You have to protect a woman, he said.
E.10 June 2015: Riot
The police report reads in part:
“Pm 10-June-2015 a riot occurred at the Metropolitan Remand Centre, … which is run by Corrections Victoria, a Business Unit of the Department of Justice & Regulation. Riot appears to have been primarily a reaction to the imposing of a smoking ban in the facility. Prisoners caused an estimated $30m damage. Matter is being investigated … “[9]
[9] Summonsed records of Victoria Police at 19
Mr Fakauafusi said that he was charged with offences arising out of the riot because he should have stayed in his cell. At the time, he had been in lock-down for 23 hours each day but when the door to his cell fell off its hinges, he walked out into the yard. There would be clear footage of him walking around the yard eating noodles, he said. At the time of the hearing, he was still in Melbourne Assessment Prison (MAP) on remand to be sentenced for his part in the riot in the Melbourne Remand Centre. He got caught up in the riot.
In cross-examination, Mr Fakauafusi said that, had he not left his cell when the door was taken from its hinges, he would have been stalked by inmates at a later time. Life is a risk. At the end of the day, he was going to MAP and so he did what he was told to do. He had no choice. It is either be involved or be stabbed.
Disciplinary proceedings in prison
In this section, I have set out those incidents that have led to a Governor’s Disciplinary Hearing. On each occasion but one which occurred on 21 June 2015, Mr Fakauafusi has pleaded guilty to the offences listed below with a summary of the circumstances in which they were committed. One Incident Report regarding matters occurring on 20 September 2014 refers to an incident involving five prisoners. Four were charged and each pleaded guilty and was fined $25. The redactions made to the report mean that, although I understand that Mr Fakauafusi was one of the five prisoners spoken to, I cannot tell whether he was one of the four who was fined. The name and identifying details of only one of the prisoners is legible and they are not those of Mr Fakauafusi.[10] Therefore, I have made no reference to that incident in the following table. For the same reasons, I have not referred to an incident that occurred on 3 May 2015 and that involved seven prisoners, including Mr Fakauafusi, fighting.[11]
[10] ST documents; ST1 at 3-4
[11] ST documents; ST1 at 14-15
The disciplinary proceedings that relate to Mr Fakauafusi are:
Date of Incident
Offence Type
Circumstances
Sentence
10 June 2014
501G
“Master Control alerted staff to a fire alarm in Cell 11 Bellbridge.
…
Staff responded notice one prisoner smoking and called false alarm….”[12]Fine: $10
23 October 2014
501B
“Prisoner … [Mr Fakauafusi] was found sleeping in the TAFE Training Room of G Industries. When informed that his employment would be terminated he became abusive and aggressive, punching the X-Ray tunnel and kicking over some chairs.”[13]
Fine: $40
2 December 2014
501A
501N1“During a security check in the PODS officers noticed a prisoner sitting at the table playing chess who did not belong in LIMA 4 Unit. When asked what unit he lived in he stated LIMA 4 Cell 11. The prisoner had no ID on him and when asked for his name he stated a name that noone [sic] could understand. During the strip search the prisoner said to the officers to shut their mouths and just wait until he see them on the outside.”[14]
Fine: $40
Fine: $4015 March 2015
501M
“Officers patrolling the tiers were approached by a prisoner … [Mr Fakauafusi] claiming his TV was stacked onto empty jam containers and positioned too close to his kettle. He claims when the kettle boiled and the steam got into the underside of the TV causing it to spark and smoke up. He claimed he struck the TV in shock to get it away from the kettle and it broke.
…
Further inspection of the TV indicated it had been hit causing the screen to cave in. Photos taken, ITFM informed. Restitution required for replacement of $268.83.”[15]
Reprimand No LOCV
15 April 2015
501B
“Ballan staff were conducting the pre let out count. Prisoner … [Mr Fakauafusi] refused multiple direct orders to stand for count and then told staff to – fuck off –“
…
Prisoner denied telling staff to fuck, claims he sat up when asked but has no memory of telling staff to fuck off
Guilty plea proven …[16]
Fine: $25
4 May 2015
AM501B
“… was told to move away from … [Mr Fakauafusi’s] cell as he was locked down. … complied and moved away, … [Mr Fakauafusi] started yelling from his cell shut up you fucking dog – get fucked you fat dog”[17]
Fine: $50
4 May 2015
PM501A
“Attwood Unit had been cleared for separated prisoners phone calls. … [Mr Fakauafusi] had completed his phone and was returned to cell. He was not given a run out and became abusive & threatening to staff I will spit on you when I get out of the cell and I will kill you, your [sic] not safe when you walk out of this prison fuckers, us Islanders will hunt you down and kill you this also incited the other sepearted [sic] prisoners to become threatening.
…
Prisoner admitted being aggressive and angry, stated he didn’t get a run out however states he cant [sic] remember the exact wording he used”[18]
Fine: $30
21 June 2015
501A
501B“The above prisoner … [Mr Fakauafusi] was trying to fish for a piece of flat bread from Cell 2 Staff interviened [sic] and it was then that the above started a tirade of abuse and threats towards … only because he picked up the intercom The abuse was words to the effect come on open the door cunt, I will smack you in the fase [sic] you cunt, youre [sic] fucked, Im [sic] going to smash you cunt, wait till I see you cunt He finished up with I better not go to a GMDH all you staff are fucking rats and dogs and cunts.”[19]
2 charges proven
Fine: $10
LCV: 28 days[12] T documents; ST1 at 2
[13] T documents; ST1 at 6
[14] ST documents; ST1 at 9
[15] ST documents; ST1 at 11
[16] ST documents; ST1 at 12
[17] ST documents; ST1 at 16
[18] ST documents; ST1 at 17
[19] ST documents; ST1 at 19
Mr Fakauafusi said that he had engaged in violent behaviour in prison in order to protect himself from other inmates looking at him and regarding him as weak and as someone who could be preyed upon. It is hard in prison and it took him a while to calm down. He was only young and, as well as testosterone, there were a lot of things happening, he said. His relationship had come to an end just when he was supposed to be getting married. His former partner had tried to stop him from seeing his daughter. There were a whole lot of things going on. He did not know whether he was acting aggressively. At the time, he agreed, he had a problem controlling his anger but he does not do so now.
Courses completed in prison
While in prison, Mr Fakauafusi obtained the following grades in units of competency related to the certificate courses shown below. The Grade marked “COM” means that Mr Fakauafusi was “Assessed – competent in all relevant off-the-job and on-the-job components satisfied”:
Year
Certificate course
Unit of competency
Grade
2014
LMT21410 Certificate II in Laundry
LMTGN2010B Perform tasks to support production
COM[20]
2014
CPP20611 Certificate in Cleaning Operations
CPPCMN2002A Participate in workplace safety arrangements
COM[21]
2014
22235VIC Certificate in General Education for Adults (Introduction)
VU21317 Communicate with others in familiar and predictable contexts
COM[22]
2014
SIT20312 Certificate in kitchen operations
SITXFSA101 Use hygienic practices for food safety
COM[23]
[20] T documents; T2 at 92 and see also 95
[21] T documents; T2 at 93
[22] T documents; T2 at 94 and see also 97
[23] T documents; T2 at 96
Mr Fakauafusi also completed a programme delivered by the Department of Justice (Vic) at the MAP. The programme was called “Coping Inside – Managing Sleep Program” and Mr Fakauafusi participated in it on 29 May 2014. It was directed to increasing participants’ knowledge about sleep, exploring the effects of poor sleep and effective means of sleeping better and providing participants with strategies to sleep better.[24]
[24] T documents; T2 at 98
Mr Fakauafusi was given a Certificate of Completion dated 25 March 2015 in recognition of his completion of the six hour “AOD & Ice Effects Program”.[25] The programme was held on 17 and 18 March 2015 and is described as:
“… a brief, 6-hour psycho-educational program. The objectives of the program include increasing participant’s knowledge of the effects of using ice, as well as post withdrawal effects of ice use. The program provides information, support, and self-management strategies for withdrawing from ice and for preventing relapse.”[26]
[25] T documents; T2 at 99
[26] T documents; T2 at 100 and see also 102
He also attended an AOD (Alcohol and Other Drug) and Stress Management Program. It comprised two sessions, which he attended on 31 March 2015 and 1 April 2015 in which he participated appropriately. The programme aims:
“… to assist prisoners to identify and manage both the physiological and psychological aspects of stress and anxiety. This includes identifying the precipitants [sic] of stress, identifying how they experience their stress and their typical reactions and skills development in managing stress effectively.”[27]
[27] T documents; T2 at 101
Client Incident Reports
Serco, the managers of the detention centre, maintain what it describes as “Client Incident Reports”. They number 24 and contain a very brief description of the incident, which is usually given in a single short line and never more than two lines. Mr Fakauafusi was described as the “Alleged Offender” in relation to 10 of those reports and as “Involved” in 13 others. In one, he was the Alleged Victim. Those in which Mr Fakauafusi was the alleged offender were:[28]
[28] T documents; T43 at 275-277
Date
Incident
Summary
02/07/2016
Minor
Abusive/Aggressive Behaviour“Detainee displayed abusive and aggressive behaviour towards Serco staff during morning headcount.”
02/07/2016
Minor
Assault“Detainee verbally assaulted Serco Officer by using threatening intimidating language towards him.”
28/06/2016
Minor
Abusive/Aggressive Behaviour“Detainees were involved in verbal altercation”
17/06/2016
Minor
Assault“Detainee alleged another detainee made verbal threats to kill him”
09/06/2016
Minor
Abusive/Aggressive Behaviour“Detainee displayed aggressive behaviour towards Serco Staff due to restrictions on his visits.”
06/06/2016
Minor
Damage - Minor“Detainee damaged two electric hand dryers”
06/06/2016
Minor
Abusive/Aggressive Behaviour“Detainee behaved in aggressive manner during pat search in visit
05/04/2017
Minor
Abusive/Aggressive Behaviour“Detainee displayed abusive and aggressive behaviour towards detainee and staff”
23/03/2016
Minor
Contraband found“Contraband found during a target room search”
18/03/2016
Major
Use of Force“Unplanned minimal Use of Force was used to separate 2 detainees.”
Mr Fakauafusi said in his evidence that Serco officers are aggressive. They look at him and judge him and so immediately place him in solitary confinement. Contrary to how they describe themselves, Mr Fakauafusi thinks that Serco officers see themselves as correction officers. Prison is a structured environment in which the officers and prisoners know the boundaries. The structure is completely different in a corrections centre but an attempt is made to run it as a prison. Whatever he does, he knows he will end up being “written up”, Mr Fakauafusi said. They look at him and say that he is aggressive. He ended up in solitary for four hours when he did not start the fight. A detention centre is not made for people like him who have been in prison, he said. People who have done the time for the crime should not be there. He has done serious crime and wishes he had not done it. He has learned his lessons and he has not had his chance to get out into the community to show that he has learned his lesson.
Mr Fakauafusi agreed that he had been the subject of disciplinary proceedings in detention. He had found out that his daughter had been abused by her grandfather who, with her grandmother, has custody of her at the moment. He wanted to be left alone when he heard the news and he had an outburst with Serco staff when he found out about the abuse.
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[29] The person or body to whom the directions are given must comply with them[30] but there is one proviso. That is found in s 499(2), which reflects the common law, to the effect that the Minister is not permitted to give directions that would be inconsistent with the Migration Act or with regulations made under it.[31] If he were to do that, it would follow that the person or body is not bound to follow the directions to the extent of the inconsistency.
[29] Migration Act; s 499(1)
[30] Migration Act; s 499(2A)
[31] Migration Act; s 499(2)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Fakauafusi.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[32]
[32] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled or when his or her application for a visa has been refused. Part C does apply in Mr Fakauafusi’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[33] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[33] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[34] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[35] I will expand upon the primary and other considerations in the course of considering them.
[34] Direction No. 65 at [8(2)]
[35] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[36]
[36] Direction No. 65 at [13.1(1)]
That statement makes clear that the persons’ conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
A. The nature and seriousness of Mr Fakauafusi’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;”.[37]
[37] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
A.1.1 Relevance of charges struck out or withdrawn
In addition to the charges laid against Mr Fakauafusi that have led to the convictions I have recorded above, I note that the T documents include others that have been struck out or withdrawn and reference was made to them in the submissions lodged on behalf of the Minister. I have not referred to them in these reasons and have not had regard to them for they carry no evidentiary weight in their own right. They are not convictions which do have evidentiary weight and to which regard must be had within certain constraints. I will return to those constraints but, for the moment, note the constraints imposed by the Evidence Act 1995 (Evidence Act).
Under the Evidence Act, evidence of a decision or of a finding of fact in an Australian (or overseas proceeding) is not admissible to prove the existence of a fact that was in issue in that proceeding. That is the effect of s 91(1), which is found in Part 3.5 of the Evidence Act. As it is not admissible, it is not admissible to prove the fact even if it is relevant for another purpose. Certain exceptions are found in s 92. One is that evidence of the decision of a court may be used to establish that a person has been convicted of an offence provided that the conviction is not the subject of an appeal that is yet to be determined, has been quashed or set aside or in respect of which a pardon has been given.[38] The hearsay rule and opinion rule do not apply to evidence of a kind referred to in s 92.[39]
[38] Evidence Act; s 92
[39] Evidence Act; s 92(3)
Charges, whether withdrawn or struck out or not, are not decisions of a court. They are not convictions. Therefore, neither the prohibition in s 91 nor the exception in s 92 applies to them. There is no basis to be found in Part 3.5 of the Evidence Act that would render the withdrawn or struck out charges admissible in a court.
While it is true that the Evidence Act does not apply to the Tribunal, it and the rules of evidence provide a sound benchmark within which to assess whether evidentiary material is both relevant and probative. Relevance of evidentiary material to the issues to be decided and the probity of that material are no less relevant to the work of an administrative tribunal reviewing administrative decisions than to the work of a court adjudicating upon the cases put by the litigants. The Tribunal, for example, must arrive at the decision that is correct in law and on that evidentiary material or, if there is more than one, the correct decision that is preferable given the limits of the discretionary power to make it. A court must also have regard to the law and the evidence and adjudicate upon the cases presented to it.
In the case of charges, as opposed to convictions, relating to criminal offences, there would seem to be no reason to reach a different conclusion. It should be noted also that, in making findings of fact in an administrative tribunal, care must be taken not to make any that contradict the factual finding necessary to support the conviction. That is consistent with the principles expressed in Minister for Immigration and Multicultural Affairs v SRT[40] that I am not permitted to make any findings of fact that are inconsistent with:
“… at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. …”[41]
[40] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
[41] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358
Situations in which charges have been withdrawn, rather than struck out, may give rise to situations in which the acts giving rise to the charges may be relevant in court proceedings in showing that a person, who had motivation to behave in a certain way, had been prepared to act on that motivation in the past.[42] Such evidence may be extremely prejudicial and not all evidence as to tendency to act is admissible in a criminal court. It must go further than mere propensity and have additional probative value before justifying its admission despite its prejudicial effect.[43]
[42] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [49]-[52]; 556 per Hodgson JA with whom Adams J agreed
[43] R v Vonarx [1995] VSC 216; [1995] VICSC 216 at [14]; Winneke P, Callaway JA and Southwell AJA
Uncharged acts may also be taken into account when sentencing a person convicted of another offence. It is open to that sentencing court to have regard to circumstances of uncharged acts if it considers it fair that it should do so. The court cannot do so if those uncharged acts would have warranted a conviction for a more serious offence but may do so if they are circumstances that aggravate the offence for which the person has been convicted. So, for example, if a person has been convicted of drug trafficking, other uncharged acts of drug trafficking may be taken into account by the sentencing Judge. To do otherwise would be to suggest that the offence for which sentence is being passed is an isolated occurrence when it is not.[44]
[44] See DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191 at [41]; 200; Ashley, Neave JJA and Lasry AJA and Lawrence v The Queen [2007] ACTCA 10 at [6]; Higgins CJ, Connolly and Cowdroy JJ
An administrative decision‑maker can have regard to a person’s behaviour when it is relevant to do so. In the case of a decision made under s 501(3A) of the Migration Act as to whether or not to exercise power under s 501CA to revoke a visa cancellation, behaviour both past and present is a relevant consideration. To discount it would mean that consideration would be limited to the conviction or convictions that led to the cancellation and the events leading up to it. Depending on circumstances, that might favour or work against either an applicant or the Minister. Either way, it would not enable the Tribunal to carry out its functions to review the decision refusing to revoke the cancellation and to reach the correct or preferable decision having regard to all of the principles and factors set out in the Minister’s Direction.
To have regard to uncharged acts in this way does not mean that police records of interviews and the like are to be taken as establishing those acts even when the standard of proof is the lesser civil standard on the balance of probabilities and not the criminal standard of beyond reasonable doubt. Those records are but one aspect of the evidence as is the evidence of the applicant and any other spoken or written evidence.
In this case, Mr Fakauafusi was not taken through the events relating to the charges which were subsequently withdrawn or struck out. He has made no reference to them. In the material that I have, there is no reason to be found for their having been withdrawn or struck out. In view of that, I do not question the police reports as an accurate record of their understanding of the events they have recorded but I do not propose to give them any weight in considering the course of Mr Fakauafusi’s conduct over the years.
A.1.2 Nature and seriousness of Mr Fakauafusi’s conduct
Putting aside any charges relating to the riot, Mr Fakauafusi’s offending falls into three groups with the first group occurring before he chose to return to New Zealand in 2009 and the remaining two groups after his return from New Zealand in 2012. Apart from the traffic related offences, all groups of offences have involved his assaulting a person or persons and, in two instances, causing injury (whether intentionally or recklessly) and his depriving persons of their property. Putting aside the first when he was 15 years of age, the other sets of offences have been more serious and have shown an escalation in seriousness. The offence that concerned the taxi driver involved, on either the police version or Mr Fakauafusi’s version, his striking the taxi driver.
As serious as the offences relating to the taxi driver were, those arising from the home invasion were more so. That is reflected in the imposition of an eighteen month term of imprisonment and Judge Coish’s identification of Mr Fakauafusi as being the main instigator of the crime. Mr Fakauafusi cannot remember the events for he was affected by his use of methamphetamine or “ice”. He and his co-offenders were armed with knives and broke into the home of the victims. His reason for doing so was to retaliate for the action allegedly taken by victim A against his cousin, who owed money to victim A. The rights and wrongs of the situation did not seem to impinge on Mr Fakauafusi’s thinking in any of this. His thinking had been distorted by the illicit drugs that he was taking at the time.
On the basis of his own evidence, I find that Mr Fakauafusi has not taken illicit drugs for two years. It could be said that he has not had a great opportunity to do so given his incarceration. Putting aside any lack of opportunity, it cannot be said that the violence Mr Fakauafusi has shown in the past and that has led to his being convicted of offences can be attributed wholly to his drug taking. It cannot be said because he has shown aggression in his behaviour when he was not under the influence of drugs, for example, when he was found by prison authorities to have broken his television and in his choice of aggressive language both in prison and in detention. Although of lesser seriousness than the offences for which he has been convicted, Mr Fakauafusi’s continuing displays of aggression are serious. Those displays of aggression have occurred in prison but have continued during his detention. While it is understandable that Mr Fakauafusi would be greatly upset by allegations that his daughter’s grandfather had abused her, his response in the form of aggressive behaviour are indicative of his not yet having found his way to control his responses so that he can express himself in a manner that is other than aggressive. His youth as a reason for engaging in aggressive and abusive behaviour becomes less persuasive as he gets older and remains detained in circumstances in which he must follow rules imposed by others.
Also worrying, I find, is Mr Fakauafusi’s view that it is appropriate to take action against victim A because his own cousin owed money to victim A. He became involved in the affairs of others seemingly oblivious to the fact that he was interfering in affairs between two people, neither of whom would seem to have been in the right. At the time, he was taking drugs. He says that it means that he cannot remember what happened. Whether that is the effect of taking amphetamine or not is not something on which I have to come to a conclusion. Even if Mr Fakauafusi is correct in what he says, it means that his behaviour was out of his knowledge and out of his control. That is serious indeed when the result is violence towards others and the theft of their property.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should 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. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”
B.1.Consideration
Should Mr Fakauafusi commit further offences of the sort for which he has been convicted, members of the Australian community are at risk of being injured. Although the taxi driver is not reported as suffering any injuries, victim A suffered physical injuries and both he and victim B have been left with psychological scars of the sort described by Judge Coish in his sentencing remarks.
I find, on the basis of a letter dated 23 February 2016 from Dr Flora Gilbert, a Senior Clinical & Forensic Psychologist with the Mobile Forensic Mental Health Service (MFMHS), that Mr Fakauafusi was referred to the service on 1 July 2015. He commenced individual psychology sessions on 16 August 2015. By 23 February 2016, he had attended 16 sessions and had done so consistently. Dr Gilbert wrote that Mr Fakauafusi had demonstrated a high level of motivation and commitment to addressing his mental health difficulties through intervention.
The sessions offered by the MFMHS were only available to Mr Fakauafusi so long as he remained at Barwon Prison. They would seem to have had a positive effect on Mr Fakauafsi for his history of disciplinary offences in prison does not record any after for which he was taken before the Governor after 21 June 2015. Three other incidents occurring after that date did not lead to any such action although those on 18 October 2015 and 16 November 2015 led to the loss of television access for seven and three days respectively.[45] In two, the actions were against, or in respect of, inanimate objects and in one, Mr Fakauafusi injured his hand when he hit a wall and abused staff.
[45] ST documents; ST 1 at 23-25
Although the pattern of his behaviour had begun to change towards the end of his sentence, it resumed its former pattern when he was detained. That is shown by the incident reports. It begins in March 2016 and continues to date. There is no evidence that Mr Fakauafusi has been able to obtain further psychology sessions since he has left the prison system.
Although I find that Mr Fakauafusi has benefitted from psychology sessions in the past, the risk remains that he has not been able to change the pattern of his behaviour. If he continues that pattern, there is a risk that he will take matters into his own hands when another person has taken action that he has assessed or perceived to be inappropriate in some way. There is also a risk that, if he cannot cope with life outside prison and the stresses that it brings, he will return to drug taking. On his evidence, he does not know what he is doing when he is taking amphetamines or ice and so the risk of his acting without regard to the situation must be increased.
I do not have any material relating to the offences for which he was convicted for on 15 December 2008. From the nature of the offences, it is apparent that, like the other two sets, they were committed in the company of others. His behaviour in prison and in detention indicates, however, that he does not need the company of others to behave in an aggressive manner. The consequences for the Australian community would be grave. They would be at risk of physical harm and of the loss of their property.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[46] In considering the best interests of the child, paragraph 13.2(4) provides that:
[46] Direction No. 65 at [13.2(2)]
“… the following factors must be considered where relevant:
a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the 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.”
If Mr Fakauafusi is removed from Australia and not permitted to return, I find that he will not have any opportunity to see his daughter on a regular basis. Whether he would have that opportunity if he were to remain in Australia is unknown on the evidence that I have. Custody would seem to lie with his daughter’s grandparents although that may be under a cloud due to the investigation I understand is being conducted by DHS. Issues of that sort are relevant not only in whether Mr Fakauafusi would have access to his daughter in Australia but may also be relevant in considering whether he will be able to maintain contact with her by, for example, Skype or telephone if he were to return to New Zealand.
If he were to return to New Zealand, Mr Fakauafusi would not face any language barriers but he has few contacts in that country. His foster father still lives in New Zealand and Mr Fakauafusi says that he reminds him of the sexual abuse and molestation that he endured at his hands. Accepting that, I do not have any evidence that suggests that he would have to see his foster father or be in his circle of acquaintances. The memories will always be with Mr Fakauafusi whether he lives in Australia, New Zealand or elsewhere.
If he were not permitted to remain in Australia, I find that Mr Fakauafusi would not have close ties of the sort that he enjoys with the Papanicolaou family. There will be nobody there for him as they are for him in Australia. He will have to make his own way and find his own strength. He could follow his dream to open a youth gym centre for troubled teenagers in New Zealand as well as in Melbourne.
Conclusion
Having regard to all of these matters, I find that the decision of the delegate of the Minister should be affirmed. In reaching that decision, I acknowledge that Mr Fakauafusi may lose contact with his daughter but the extent to which he will have contact if he remains in Australia is uncertain. He will not have the ongoing support of the Papanicolaou family. Life will be difficult but he has plans that draw upon his difficulties and experience and that, if he can bring them to fruition, will help other troubled young people. To date, however, he has not been able to put his own troubled past behind him and to move from his aggressive responses to a position where it could be said that the risk that he poses to the Australian community is at an acceptable level. The underpinning policy of the Direction is to protect the Australian community. His propensity to engage in violence has not been tempered and the risk of his causing serious injury to another person is unacceptable.
DECISION
For the reasons I have given, I affirm the decision of a delegate of the Minister dated 6 July 2016 not to revoke the decision to cancel Mr Fakauafusi’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the one-hundred [100] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ………..[sgd]...............................................
Associate
Date of Hearing 21 March 2017
Date of Decision 4 July 2017
Self-represented Applicant Mr Maueofa Fakauafusi
Solicitor for the Respondent Ms Rachel Noronha
Clayton Utz
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