Ma'afu and Minister for Home Affairs (Migration)

Ma'afu and Minister for Home Affairs (Migration) [2019] AATA 684 (9 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0332
Re:John Ma'afu
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:9 April 2019
Place:Brisbane

The decision under review is set aside and substituted such that the discretion in s 501CA(4)(b)(ii) of Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
........................[SGD]................................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – applicant failed to pass the character test – sentenced to 12 months’ imprisonment or more – whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – decision under review set aside and substituted
Legislation
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Penalties and Sentencing Act 1992 (Qld)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Table of Contents
REASONS FOR DECISION
BACKGROUND
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Likelihood of the Non-citizen Engaging in Further Criminal or Other Serious Conduct
Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia
Conclusion: Primary Consideration B

Primary Consideration C – The Expectations of the Australian Community
Conclusion: Primary Consideration C

Other Considerations
(a)      Non-Refoulement Obligations
(b)      Strength, Nature and Duration of Ties
(c)      Impact on Australian business interests
(d)      Impact on victims
(e)      Extent of impediments if removed
Conclusion: Other Considerations

Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
CONCLUSION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 April 2019

This matter relates to an application for review filed by John Ma’afu (“the Applicant”) on 18 January 2019. The decision under review is the decision of a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) dated 15 January 2019. The delegate’s decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa.
[1] Mandatory visa cancellation by virtue of s 501(3A) of the Act.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a 35 year old citizen of Tonga. Movement records indicate that he first arrived in Australia on 26 June 2008.[2] The Applicant departed Australia on 26 July 2008 and returned to Australia on 28 July 2008 on a Tourist visa (subclass 676) that expired on 28 October 2008.[3] The Applicant then resided in Australia for two periods without a valid visa: from 29 October 2008 to 2 December 2008 and from 19 December 2008 to 24 October 2011.[4]
[2] Exhibit 5, s 501 G-Documents, G2, page 173.
[3] Ibid.
[4] Ibid.
He was granted a Class WE Bridging Visa E (subclass 050) (“the visa”) on 25 October 2011.[5] This specific visa continued to be granted to the Applicant culminating in its grant to him on 20 June 2012 for a period of approximately five years such that it expired on 13 April 2017.[6]
[5] Ibid.
[6] Ibid, G2, page 172.
This was the visa that was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act on 13 April 2017.[7] On 15 January 2019, a delegate of the Minister refused to revoke the abovementioned cancellation decision in relation to the visa.
[7] Ibid, G2, page 9.
The Applicant has a criminal history in Australia from 27 June 2013 to 19 August 2015.[8] It should be noted that on 22 March 2016, the Queensland Court of Appeal refused the Applicant leave to appeal against the sentence imposed on 19 August 2015. For the purposes of this decision, it will be assumed that the Applicant’s offending came before the sentencing courts on the specific dates of 27 June 2013 and 19 August 2015.
[8] Ibid, G2, pages 31-32.
As mentioned earlier, on 13 April 2017, a delegate of the Minister initially notified the Applicant that his visa had been cancelled pursuant to s 501(3A) of the Act. The cancellation occurred on the basis of the Applicant having a “substantial criminal record” for the purposes of the Act as he had been (1) sentenced to a term of imprisonment of more than 12 months; (2) was serving a sentence of imprisonment on a full-time basis in a custodial institution and (3) for an offence against a law of the Commonwealth, a State or Territory.[9]
[9] See sub-sections 501(6)(a) and 501(7)(c) of the Act.
On 20 April 2017, the Applicant submitted a request for revocation of the cancellation decision. As mentioned earlier, on 15 January 2019, the Minister’s delegate, pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation.
There followed the filing of the present application for review in this Tribunal on 18 January 2019.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) 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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, concedes that he does not pass the character test as he has a substantial criminal record as defined by the Act.[13] This concession was appropriately made: on 19 August 2015, the Applicant was sentenced to a head custodial term of seven years for three specific offences:
·Pursuant to ss 317(a) and (e) of the Criminal Code Act 1899 (Qld) on one count of committing acts intended to maim/disfigure/disable;
·Pursuant to s339(1) of the Criminal Code Act 1899 (Qld) for one count of assaults occasioning bodily harm;
·Pursuant to s 335 of the Criminal Code Act 1899 (Qld) for one count of common assault.
[13] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [3(b)].
Each of the offences were committed on 1 January 2014 and were punished by respective custodial terms of seven years for the first, 12 months for the second and one week for the third. Although the imposition of the seven year head custodial sentence contained certain stipulations about release on parole,[14] what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[15]
[14] Exhibit 5, s 501 G-Documents, G2, page 31. The Applicant’s parole eligibility date was fixed at three years, effective on 19 August 2018.
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application[16]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
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.[17]
[16] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[17] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[19]
[18] [2018] FCA 594.
[19] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending history can be gleaned from his National Police Certificate which appears in the material.[20] The totality of the offending history can be summarized as follows:
The offending history in Australia
[20] Exhibit 5, s 501 G-Documents, G2, pages 31-32

Court

Court Date

Offence

Court Result

Pine Rivers Magistrates Court

22 June 2013

Being drunk and disorderly in premises to which a permit/licence relates

No conviction recorded; entered into a recognisance in the sum of $200 to be of good behaviour for a period of six months

Brisbane District Court

19 August 2015

Commission of acts intended to maim/disfigure/disable

Assaults occasioning bodily harm

Common assault

Conviction recorded and sentenced to a term of imprisonment for seven years.

Conviction recorded and sentenced to a term of imprisonment for 12 months

Conviction recorded and sentenced to a term of imprisonment for one week

Queensland Court of Appeal

22 March 2016[21]

Application for leave to appeal against sentence imposed on 19 August 2015

Outcome on appeal: application for leave to appeal refused.

[21] As mentioned earlier, for the purposes of this decision, it will be assumed that the Applicant’s offending came before the sentencing courts on the specific dates of 27 June 2013 and 19 August 2015. The appeal only dealt with the extant sentences imposed on 19 August 2015 culminating in the head custodial term of seven years.
The Nature and Seriousness of the Applicant’s Conduct to Date

In the written material before the Tribunal filed on behalf of the Applicant, it is readily conceded that “…the nature and seriousness of [the Applicant’s] conduct to date is very serious.”[22] In the course of oral submissions made on behalf of the Applicant at the hearing, it was readily conceded that “…the applicant’s offending is extremely serious – that has always been considered from the moment he has pleaded guilty and his timely plea of guilty, right through his initial revocation request, and even today.”[23]
[22] Exhibit 1, Applicant’s SFIC, page 7, paragraph [46].
[23] Transcript of proceedings (“Transcript”), page 74, lines 28-31.
The Respondent’s contention is that the totality of the Applicant’s offending involves an undeniably predominant theme of “…significant and reckless violence…”[24] Accordingly, contends the Respondent, “…the Tribunal should conclude that the Applicant has committed very serious violent offending in Australia…” particularly as a result of him engaging “…in reckless and dangerous behaviour when he is under the influence of alcohol.”[25]
[24] Exhibit 4, Respondent’s SFIC, page 10, paragraph [29].
[25] Ibid, paragraphs [34]-[35].

All of the Applicant’s serious offending occurred while he was very heavily intoxicated during and after attending a New Year’s Eve party on the evening of 31 December 2013 – 1 January 2014. On the evening in question, the Applicant attended a New Year’s Eve party with his work mates. He started drinking at “about mid-day” before he attended the party later that night. He recalls finishing a six-pack of beer before going to the party. At the party, the Applicant remembers “…drinking a lot of different spirits.”[26] He was sentenced on the basis of the offending having occurred due to an over-consumption of alcohol. As noted by His Honour Farr DCJ:
“Your counsel succinctly summarised your behaviour on the night in question by suggesting that you lost control of all your senses, and it does seem to me to be an apt description and it can only be due, on all the material before me, to the over-consumption of alcohol. It would seem that that over-consumption occurred in the context of you being encouraged to drink by work mates and being encouraged to drink a type or types of alcohol to which you were not accustomed and that that has had a significant role to play in your subsequent unusual and criminal behaviour.”[27]
[26] Transcript, page 11, lines 22-23.
[27] Exhibit 5, s 501 G-Documents, G2, page 45, lines 25-31.
At the hearing, the extent to which the Applicant’s over-consumption of alcohol had affected his state of mind was readily apparent. In evidence in chief, he was asked whether he could remember anything about his offending on the night in question which later resulted in his convictions. He responded as follows:
“That night I remember I was argue [sic] with one of the…boy in the party and they called a taxi for me to go. Send me home. And I remember I was argue [sic] with the taxi in my front yard and I remember…I got…up to the house and I go to the house next to my street. But apart from that, I didn’t remember much – much that happened for me that night.
So you don’t remember what happened at the house down the road? – yes I didn’t remember much what happened inside the house, when I go inside the house. I remember was a lot [sic] of people around me when I sit next-in the street in my front yard, and a lot of people around me and the ambulance picked me up from my front yard.”[28]
[28] Transcript, page 11, lines 27-38.
Given the Applicant’s ready acceptance of the “extremely serious” nature his offending and the Respondent’s contention about the “very serious, violent offending…” of the Applicant, there seems little utility in my embarking upon a detailed analysis of how the Applicant’s conduct can be assessed as such. Suffice it to say that I adopt the compelling and logical summary of the Applicant’s offending contained in paragraphs [21]-[26] (inclusive) of the Respondent’s Statement of Facts, Issues and Contentions.[29]
[29] Exhibit 4, Respondent’s SFIC, pages 7-10.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There can surely be no argument that any objective review of the factual circumstances surrounding the Applicant’s offending dealt with by the Brisbane District Court for sentencing on 19 August 2015 are anything other than (1) very violent offences and (2) very serious in nature. The Applicant’s offending involved one count of common assault, one count of assaults occasioning bodily harm and one count of committing acts intending to maim/disfigure/disable another.
The Applicant’s commission of a common assault against a 14 year old, preceded, as it was, by an audible statement that he was “…going to eat him” could perhaps be put down to an error of judgement arising from the (by then) heavily intoxicated state in which the Applicant found himself. His commission of the assaults occasioning bodily harm against the unfortunate taxi driver could, at best, be put down to violent conduct resulting from a loss of self-control and a capacity to resolve an impasse that amounted to little more than not being able to fund the taxi fare.
However, the Applicant’s conduct in relation to committing acts intended to maim/disfigure and disable his neighbour display a quite significantly higher level of reckless indifference to the outcome of what did occur and, even more catastrophically, could have occurred had his conduct with the machete not been as badly affected by his intoxication as it must have been on the evening in question. This total loss of self-moderation and regulation continued after the physical exchange between the Applicant, his neighbour and the neighbour’s housemate because as the Applicant ran off from the physical altercation involving the machete, he yelled out “…I’m going to come back and cut you…”.
This third category of offending can only be construed as very serious. It involved a very high level of violence and the infliction of serious injury upon the neighbour/victim. The violence did not necessarily cease with the end of the physical altercation because the Applicant continued to make extraordinary and dangerous threats about returning to “cut the victim” at another time. As noted by the Respondent:[30]
·The Applicant only desisted when the neighbour’s housemate intervened;
·Even the Applicant’s own evidence is demonstrative of some degree of pre-meditation because the neighbour’s conduct towards his wife and children had been steadily churning in the Applicant’s mind for some time and this offending clearly constituted behaviour, in his state of mind, intended to “square the ledger” with the neighbour; and
·The offending is very serious because it was committed in the neighbour’s own home which, of course, is a place where the neighbour is entitled to feel safe.
[30] Ibid, page 10, paragraph [28].
While not as overtly violent and reckless, the Applicant’s offending towards the 14 year old is both immature and irresponsible. The Applicant is a man approaching 40 years of age with infant children of his own. He ought be well aware that adolescent children say and do all sorts of provocative things. The Applicant should have known to leave well enough alone with the person who became his 14 year old victim.
The seriousness inherent in the conduct towards the taxi driver is that it could have resulted in virtually any outcome and, quite conceivably, a catastrophic one. This was no idle, verbal altercation about the cost of the fare or whether the driver took the long route to the destination. The behaviour derived from an incapacity in the Applicant to deal with a moment of difficulty in a logical and controlled manner. Instead, he initially assaulted the taxi driver by throwing a wine cooler/container in his direction. This was followed by two further incidents involving (1) the Applicant punching the taxi driver in the face and impacting his left cheek; and (2) arbitrarily locating a fence paling and throwing it in the direction of the taxi as it was being driven away. Notably, the Applicant only managed to land one punch onto the taxi drivers’ face because his wife intervened and prevented further blows.
The totality of the Applicant’s offending that came before His Honour Farr DCJ in August 2015 is both appalling and very serious. There is no ameliorative aspect to any of this conduct capable of giving even a partial explanation for his behaviour. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the clearly reckless and violent circumstances of the totality of the Applicant’s offending for which he was sentenced in August 2015 must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. The Applicant was convicted of the commission of a common assault against a 14 year old child. While not as extremely and as irresponsibly violent as his conduct was towards the neighbour and the taxi driver, the slapping of a 14 year old child coupled with a pre-cursory statement that he would “eat him” is, to my mind, in and of itself, violent conduct against a child for the purposes of this sub-paragraph (b). Such conduct can only militate in favour of a finding nature of the Applicant’s conduct ought be categorised as very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.
The Applicant’s first sentencing episode occurred in June 2013. It involved the non-recording of a conviction for being drunk and disorderly in premises in which a permit/licence relates. The operative effect of the penalty required the Applicant to enter into a recognisance in the sum of $200 and to be of good behaviour for a period of six months. His next sentencing episode was the above mentioned offences that came before His Honour Farr DCJ in August 2015. The seriousness of the Applicant’s offending for which he was sentenced in August 2015 can be seen in the very significant disparity between the severity of the sentence imposed in 2013 compared to the sentencing regime imposed in August 2015.
There was no suggestion of progressive escalation in the severity of the sentences imposed on 2013 and 2015. The sentencing regime imposed in 2015 is at once very significant. The head custodial term was fixed at seven years. Under the concurrent chapeau of that head custodial term (for the commission of acts intended to maim/disfigure/disable against the neighbour), the Applicant was ordered to concurrently serve an additional term of 12 months’ (for the assaults occasioning bodily harm committed against the taxi driver) and one week (for the common assault committed against the 14 year old child).
It cannot be denied that this 2015 sentencing regime represents an exponential increase above that imposed in 2013. That, in itself, attracts an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts across this Applicant’s albeit brief offending history are demonstrative of the very serious nature of his offending.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
There can be no contention against the clear, obvious, and very significant escalation between the seriousness of the Applicant’s 2013 offending compared to the conduct for which he was punished in August 2015. Thus, there is an undeniable trend of increasing seriousness in the Applicant’s offending. While his offending has not necessarily been frequent per se, the custodial time he has received for this 2015 offending has, on any reasonable view, featured strongly during his time in this country.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the relative frequency of the Applicant’s offending and its increasing severity is such as to render his offending very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. It should be noted that the Applicant first came to this country in June 2008. He had been here for approximately seven years until his incarceration to serve the mandatory non-parole period of three years as part of the head custodial sentence of seven years to which he was sentenced in August 2015. That three year term in criminal custody expired in August 2018 whereupon he was taken into immigration detention. Thus, the Applicant’s very serious criminal offending has caused him to be removed from the mainstream Australian community – whether it be in criminal custody or in immigration detention – for almost five years, representing almost half of his time in this country.
This ratio is even more sobering if one discounts from his 10 year tenure in Australia the period of three years he was here as an unlawful immigrant without a valid visa. In that scenario, the head custodial term of seven years imposed in August 2015 consumes the entirety of his time in Australia as a lawful visa holder. Or, viewed another way, the almost five years he has served in criminal custody/immigration detention represents almost 72% of the total of seven years he has lawfully resided here.
His offending demonstrates a lack of capacity to distinguish right from wrong. It is certainly not respectful of the personal rights of others, and in the case of the offending against the taxi driver, can hardly be said to be respectful of the property rights of others as well. The Applicant’s failure to control himself after his consumption of alcohol and to commit reckless and very violent offences is conduct not befitting of a person who now seeks restoration of his visa status to remain in this country.
Another aspect of the cumulative effect of the Applicant’s offending involved His Honour Farr DCJ’s consideration of whether to declare the Applicant’s offence in relation to the neighbour to be a serious violent offence.[31] If such a declaration had been made, the Applicant would have been compelled to serve 80% of any head custodial term, meaning he would have served five years and six months (of the seven year head term) in criminal custody. His Honour thought long and hard about making such a declaration and, luckily for the Applicant, said this:
“As I say, I’ve considered long and hard whether to declare count 4 [the charge of committing acts intended to maim/disfigure/disable – the neighbour] a serious violent offence. It seems to me, ultimately, it was very much a line ball decision, but I have concluded ultimately, to give you [the Applicant] the benefit of the doubt in that regard and I will not make such a declaration. I do intend, however, to impose a sentence that – on count 4, that reflects the overall criminality of your behaviour on the evening in question, and by that, I mean including particularly the assault upon the complainant in count 3 [assaults occasioning bodily harm – taxi driver]. For that reason, the parole eligibility that I intend to impose upon you is greater than would otherwise have been the case. It seems to me that were I dealing with just count 4, that a period of two and a half years might have been considered appropriate in all the circumstances, but taking the overall criminality into account, it should be something greater than that.”[32]
[31] See Penalties and Sentencing Act 1992 (Qld), Part 9A.
[32] Exhibit 5, s 501 G-Documents, G2, page 46, lines 36-46.
The application of this sub-paragraph (f) to the present factual matrix thus gives rise to the finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e) and (f), of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s history of offending is a relatively short one. Prior to his offending on New Year’s Eve 2013 (punished by Farr DCJ in August 2015), the Applicant’s offending history is unremarkable and almost non-existent. It amounts to nothing more than a drunk and disorderly offence in licensed premises. No conviction was recorded for that offending and it was punished by the Applicant’s agreement to enter into a recognisance in the sum of $200 to be of good behaviour for a period of six months.
However, the demarcation in seriousness between the Applicant’s prior history and the offences for which he was punished in August 2015 is so significant and exponential such as to lead me to no other possible conclusion other than concluding it is very serious. I am prepared to give some measure of benefit to the Applicant by having regard to the comparative circumstances of his three specific offences against the person. His slapping of the 14 year old child and the precursory peculiar use of language can be described as irresponsible. The Applicant, in reacting as he did, is not the first nor will he be the last adult person to be offended by the often offensive remarks of an adolescent.
His conduct involving the commission of assaults on the taxi driver, while irresponsible and ill-considered, is nothing too much out of the ordinary. That does not mean this episode of offending is not serious: I am of the view that it is very serious. Not only did the Applicant not have any right to physically interfere with the taxi driver as he did, I have little or no difficulty in finding that the Applicant must surely have been aware of media campaigns highlighting the significant dangers posed by “one punch” offending episodes. But for the intervention of the Applicant’s wife, there is every likelihood the Applicant would have continued his physical assault of the unfortunate taxi driver. The Applicant’s conduct in arbitrarily picking up a fence paling and throwing it at the taxi as it was being driven away is as brazen as it is stupid.
The perhaps insurmountable difficulty the Applicant has in this case lies in explaining away the very serious – or, as described by his legal representative, “extremely serious” – conduct involving his very dangerous altercation with the neighbour. It is by no means a stretch to say that this altercation could have resulted in a fatality. The Applicant is physically a well-built and robust man, with no doubt considerable strength and endurance. The weapon with which he confronted the neighbour – a machete – is an implement that can quite easily inflict significant physical harm on an intended victim. A machete is, of course, a much more potent and dangerous weapon than a blunter instrument of roughly similar size, such as, for example, a cricket stump or a cricket bat.
The point about the offending with the machete is that such a dangerous weapon in the hands of a physically well-built and robust man, whose coordination was clearly affected by alcohol, is a very dangerous combination indeed. As mentioned, this episode could have resulted in a fatality but for the intervention of the neighbour’s housemate who intervened with a cricket bat. Even a wrestle between the neighbour and the Applicant with the machete as part of that struggle resulted in quite significant injuries to the neighbour/victim. It is not contested that those injuries were significant and required surgical intervention to be put right.

His Honour Farr DCJ noted these things in his sentencing remarks:
“[The neighbour/victim] … as I’ve indicated, suffered serious injuries. He suffered a shoulder laceration through muscle and tendon, a right thumb laceration through tendon and left-hand index, middle and ring finger laceration through tendon. All injuries required surgical repair. Were that not to occur, he would have been left with permanent disabilities in those 3 areas. The effect of your behaviour on the night in question, insofar as [the neighbour/victim] is concerned, is that you, of course, caused him the physical injuries that I have just summaries. He’s also, understandably, suffered emotional and psychological injuries. He has continuing physical problems as a consequence of what you did to him on the evening in question and is still battling to cope emotionally, all of which is perfectly understandable.”[33]
[33] Ibid, G2, page 44, lines 1-10.
Indeed, the Applicant’s conduct with the machete put himself in danger as well. As also noted by His Honour Farr DCJ:
“I also note that, in the course of the struggle with [the neighbour/victim], you also suffered injury which required 23 stitches to your wrist, that is, of course, an injury caused by the machete you took to the scene and that I’m told you have now reduced feeling in parts of that hand, so you have this continuing and permanent reminder of your criminal conduct and its potential consequences. The fact that the consequences were not more severe is very much a matter of luck, it seems to me. In the circumstances you could have been facing even more serious charges. It is fortunate for you that you are not. It’s fortunate for [the neighbour/victim] that you are not but that seems to be more due to good luck than design.”[34]
[34] Ibid, page 45, lines 33-41
The other significant point about the Applicant’s offending is that the custodial time to which he was sentenced in August 2015 has, on any reasonable view, featured very significantly during his time in this country. The very significant seriousness of his offending ought not be ameliorated by the role played by alcohol on 31 December 2013 - 1 January 2014. Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
In the hearing before me, the primary independent witness who provided evidence informing the Tribunal about the Applicant’s risk of re-offending was the psychologist and Associate Professor in Allied Health, Dr Jacqui Yoxall. Her report is part of the exhibited material and is dated 19 February 2019.[35] It should also be noted that three other people have made findings about the Applicant’s risk of re-offending during the history of this matter. They comprise (1) the forensic psychologist and clinical neuropsychologist, Mr Peter Perros whose report, dated 18 August 2015,[36] was prepared for the Applicant’s sentencing hearing before His Honour Farr DCJ; (2) the sentencing judge, His Honour Farr DCJ[37]; and (3) the Minister’s delegate.[38] It is pertinent to summarise each of those findings in turn.
Mr Peter Perros – forensic psychologist and clinical neuropsychologist (report: 18/8/15)
[35] Exhibit 2, Report of Dr Jacqui Yoxall dated 19 February 2019.
[36] Exhibit 5, s 501 G-Documents, G2, pages 154-159.
[37] Ibid, G2, pages 41-47.
[38] Ibid, G2, pages 9-30.
In forming a summary and opinion about the Applicant, Mr Perros noted these things:
“Mr Ma’afu was raised in a farming community and raised to be very religious.
He became depressed living away from his parents and siblings who remained in Tonga.
He engaged in infrequent binge drinking and otherwise lived his life as a devoted and hard-working family man.
All this makes the subject offence [for which he was sentenced in August 2015] appear completely out of character…
Mr Ma’afu is not reporting any current distress, and he appears to be thinking and reasoning clearly.
I can recommend psychological counselling for Mr Ma’afu. He displays a pre-disposition to use alcohol maladaptively to manage stress and anxiety, and I wonder if he also needs to talk about the unhappiness he experienced when he moved to Australia (missing his parents). Perhaps there is an untreated mood disorder?
…
Substance Use
Mr Ma’afu said he smokes nicotine and typically drank a six pack of beer every fortnight to a month; he added there are weeks he goes without consuming any alcohol. However when his stress levels are high he has (very infrequently) engaged in binge drinking (according to his wife about once every 3 to 4 months)
…
Explanation of Offending Behaviour
I see it as a combination of three things (a) being seriously assaulted a few weeks before this subject offence – a possible head injury, (b) excessive consumption of spirits in a relatively short space of time (which can alter brain electrical activity quite markedly) and (c) something was said that triggered a response of explosive anger that is uncharacteristic.
Mitigating Factors
Mr Ma’afu expressed a very positive attitude to psychological therapy. He currently poses a low risk to the community.
Sentencing Options
A custodial sentence will cause considerable hardship for Mr Ma’afu’s wife and children. She will need to leave the house in Oxley and will need to find emergency accommodation. She is currently receiving a Parenting Payment from Centrelink.
Likelihood of Re-offending
Low. He comes from a good family, does not have a psychiatric disorder, and has no criminal history. He has a supportive wife, and understands he needs help to prevent a relapse.”[39]
[my underlining]
His Honour Farr DCJ
[39] Ibid, G2, pages 157-159.
When sentencing the Applicant on 19 August 2015 at the Brisbane District Court, the learned sentencing judge noted the following:
“It is also, in my view, of some considerable relevance that the degree of your intoxication on the evening in question arose as a consequence of workmates plying with an alcohol or alcohols that you were not accustomed to and that you, not having consumed such substances in the past, would have no prior warning that you can behave in such extraordinary ways when that intoxicated. You most certainly have had that warning now.
It’s been submitted that you have good future prospects and that you are an unlikely reoffender. On all of the material before me, that would seem to be a reasonable submission, provided, it seems, that you are able to abstain from the over-consumption of alcohol. Given that that is not something you did prior to this event and have certainly not done since this event, there… would seem to me to be reasonable prospects. And, again, that is a relevant consideration. It reduces the significance of the consideration of personal deterrence when it comes to the determination of an appropriate sentence.”[40]
[my underlining and emphasis]
The delegate of the Minister (decision: 15/1/19)
[40] Ibid, G2, pages 45-46, lines 46-47, 1-6 and 29-34.
The Minister’s delegate made these comments and findings in the decision under review:
“50. I note that Mr MA’AFU’s agent has submitted that there is no other evidence that suggests Mr MA’AFU has alcohol addictions or might otherwise have difficulty from abstaining from alcohol, placing him at risk of re-offending. In the absence of such evidence, Mr MA’AFU’s agent argues that the decision maker cannot reasonably conclude that Mr MA’AFU could return to alcohol consumption and therefore place the community at harm should his visa be reinstated.
51. While I acknowledge that Mr MA’AFU does not have an alcohol problem, I note from Mr Perros’ psychological report that Mr MA’AFU has a tendency, though infrequently, to resort to alcohol when his stress levels are high which I find makes him susceptible to engage in future offending. I also note Mr Perros in his assessment of Mr MA’AFU, stated that Mr MA’AFU had expressed a “very positive attitude to psychological therapy. He currently poses a low risk to the community.”
52. I accept that Mr MA’AFU has the support of family and friends, has made progress towards his rehabilitation and has positive plans and intentions for his release from prison which may reduce the likelihood of him re-offending…
53. I find that there is a low risk that Mr MA’AFU will re-offend. I consider that should Mr MA’AFU reoffend in a similar matter, it could result in physical and psychological harm to members of the Australian community.”[41]
[my underlining]
Dr Jacqui Yoxall (Report: 19/2/19)
[41] Ibid, G2, pages 18-19.
Dr Yoxall conducted a psychological assessment of the Applicant via teleconference on 13 February 2019. Her report examines and reviews relevant factors such as the factual background to the Applicant’s offending, any previous criminal history the Applicant may have in Tonga (nil), the Applicant’s current personal circumstances, and his relevant personal history. As I understood her report, none of these factors reviewed by Dr Yoxall revealed anything telling or remarkable.
Dr Yoxall then made the following observations and findings:
“5.2 Substance Use History:
Mr Ma’afu said that prior to the offending on 1 January 2014, he had no prior difficulties arising from alcohol use. He said that he started consuming alcohol when he was in late adolescence. He said that he has never consumed alcohol on a daily basis. He said that prior to the offending he would drink alcohol in social situations – approximately once or twice a month. He said that in each session of drinking he might consume about 6 bottles (stubbies) of full strength beer over about six hours. He said that he rarely drank spirits, preferring beer…”[42]
[42] Exhibit 2, Report of Dr Jacqui Yoxall dated 19 February 2019, page 9.
Dr Yoxall then thoroughly reviewed the factual circumstances of the three offences committed by the Applicant on 31 December 2013 - 1 January 2014. With particular reference to that offending, Dr Yoxall noted these things:
“7. MR MA’AFU’s ACCOUNT OF HIS OFFENDING:
Mr Ma’afu was 30 years old at the time of the offending. Mr Ma’afu said that he attended a New Year’s Eve party on 31 December 2013. His wife remained at home with their two children. They [sic] youngest daughter was only two months old. He said that most of the people at the party were drinking mixes of spirits.
Mr Ma’afu said he only initially wanted to drink beer but after drinking a six pack of beer, he was convinced by his work friends, who were at the party, to try the mixed spirits that other people at the party were preparing. He said, ‘it was all kinds of alcohol mixed together. I don’t know what was in what I was drinking’. He estimated that he consumed about six glasses of mixed spirits. He said that he felt very intoxicated.
Mr Ma’afu said that his memory of the evening was very patchy. He said, ‘I recall going to the party and the early part of the party but I don’t recall much after the first hour or so’. He said that he did consume several glasses of mixed spirits.
Mr Ma’afu said that he does not recall offending against the 14-year-old boy (common assault)…
Mr Ma’afu said that he doesn’t recall his offending against the taxi driver. He said that he can’t recall travelling home in the taxi or seeing his wife at home…
Mr Ma’afu said that he does not recall his offending against a male who lived in a home nearby. He said that he did not previously know this person. He said that he has no idea why he took a machete with him or why he attacked the neighbour with a machete.
…
I understand that Mr Ma’afu ceased alcohol immediately after the offending and then abstained from alcohol use until he was incarcerated. I understand that he accessed some counselling in regard to alcohol use and that he frequented The Mens Shed at Bribie Island where he developed friendships with older males, assisted people with various projects and developed his support network.”[43]
[43] Ibid, pages 7-9.
Dr Yoxall made respective assessments of the Applicant’s remorse and level of developed insight into his offending. These were her findings:
“8. IMPACT OF INCARCERATION:
8.1 Remorse and Acceptance of Responsibility:
Mr Ma’afu presents as generally remorseful for his offending. He noted that he is very ashamed of his behaviour on 1 January 2014. He said that he is distressed that he caused injury to the taxi driver and to the resident in his street. He said, “I was drunk with alcohol but that is no excuse for what I did. I feel very guilty.
…
8.2 Development of Insight:
Mr Ma’afu demonstrated reasonable insight into his offending and the role of alcohol intoxication. He said that he has no history of violence and would never usually behave in such a manner. He said that his level of alcohol intoxication on the night of the offending was factor [sic] in his offending. He said that he does not require this to be an excuse for his behaviour. He said that as a consequence of the offending he ceased use of alcohol and remained abstinent until incarceration (in a secure and controlled environment). He said that he does not intend to consume alcohol in the future.”[44]
[44] Ibid, page 9.
Dr Yoxall conducted two testing methodologies designed to predict an offender’s risk of violent recidivism. The first of those was the Violence Risk Appraisal Guide (“VRAG”). Her report defines VRAG as an actuarial tool for the prediction of violent recidivism. The tool gives the probability (from zero to 100%) that an offender will commit a new violent offence within a specified period of community access. The VRAG testing methodology indicates how one offender’s risk compares to others. According to Dr Yoxall’s report, the VRAG methodology was developed by studying the recidivism of more than 800 serious offenders, both forensic patients and convicted criminals. It uses 12 personal characteristics to establish risk.
In terms of findings upon application of the VRAG methodology, Dr Yoxall said:
“On review of the normative sample used to develop the VRAG, the seven-year base rate of violent recidivism was 31% and the 10-year base rate of recidivism was 43%.[45]
Using the VRAG, a total score of -11 was calculated for Mr Ma’afu. This score is assigned to Risk Category 3. Among offenders in the development sample for the VRAG, 78% obtained higher VRAG scores, and approximately 12% in the assessed persons category reoffended violently within an average of 7 years (24% within an average of 10 years) after release.”
[45] Ibid, page 12.
The second assessment instrument applied by Dr Yoxall was the Level of Service Inventory – Revised (“LSI-R”). According to her report, LSI-R is the most empirically evidenced and widely used fourth generation risk assessment. It measures 10 static (or historical) and dynamic risk/need domains. Those 10 static domains include criminal history, education and employment, financial, family/marital, accommodation, leisure/recreation, companions, alcohol/drug problems, emotional/personal, and attitudes/orientation. Higher scores are indicative of those offenders with increased risk of reoffending and increased need for intensive intervention. The primary goal of the measure is to identify dynamic risk/needs variables that can potentially be changed so as to reduce the risk of re-offending.
Relevant for present purposes are Dr Yoxall’s following comments and findings about several of the static domain items:
“Family/Marital:
...
Mr Ma’afu noted that he is fearful that he is not permitted to remain in Australia, his wife and daughters will need to relocate to Tonga so that they can live together as a family. He said that Tonga cannot provide a better life than that which they have in Australia. He said that the education and health system in Tonga is inferior to that in Australia. He said there are fewer opportunities for females in Tonga overall. He said that his wife and children and [sic] close to her parents and family would be devastated to have to leave them in Australia.
…
Companions:
Mr Ma’afu said that he has dissaociated [sic] from people that engage in regular binge drinking. He said that he enjoys the company of the older pro-social men that spend time at The Mens Shed…
…
Alcohol/Drug Problem:
Mr Ma’afu said that although he doesn’t have a history, prior to 1 January 2014 of problem drinking or misuse of alcohol, the offending on that date confirms to him that he must not consume alcohol in the future. Accordingly he said that he has not consumed any alcohol since the offending (including the period of incarceration in a controlled environment where he has no access to alcohol). There is no indication that Mr Ma’afu has used illegal drugs in the past, or that he is at risk of using drugs in the future.
...
Attitudes/Orientation:
…
On review of Mr Ma’afu’s records and what he revealed in interview, it appears that he is highly motivated to address his alcohol misuse and engage in recommended treatment. Mr Ma’afu’s score on the LSI-R was 5 and primarily related to his static (historical) risk factors and his alcohol use. North American norms are commonly used in Australia for this measure. A score below 13 indicates low risk of reoffending and a low risk of rehabilitation needs. In the normative example, approximately 22.1% who scored in this range reoffended (and were incarcerated) within 12 months.”[46]
[46] Ibid, pages 13-15.
In terms of concluded findings, Dr Yoxall said these things:
“11. SUMMARY AND CONCLUSION:
The circumstances of the offending are that Mr Ma’afu was heavily intoxicated, having consumed a volume of alcohol and mixture and type of alcohol that he was not used to. Such was the level of his intoxication, he reports that he has limited memory of most of the offending. Prior to 1 January 2014, Mr Ma’afu had no history of violence and only one charge for public nuisance/drunk and disorderly.
…
Mr Ma’afu accepts responsibility for his offending and is motivated to adhere to any required ongoing supervision or treatment in the community. He demonstrates insight into his offending and the impact of alcohol on his offending. He reports that he has abstained from alcohol since the offending and has made a commitment to himself and his family that he will not consume alcohol again.
…
On review of available information it is my view that Mr Ma’afu’s risk of reoffending is low but is directly related to his abstinence from alcohol. In this regard, he would benefit from ongoing support and counselling to ensure he does not relapse to alcohol use. This may involve individual alcohol counselling or group session on a monthly to six week basis.”[47]
[my underlining]
[47] Ibid, pages 16-17.
In her evidence in chief, Dr Yoxall affirmed the conclusion she reached in her written report:
“So in considering the outcome of those two measures [VRAG and LSI-R], and clinical judgment, it’s my view and opinion that he’s at low risk of reoffending, and that’s what I have provided in the conclusion. It’s important to identify which are the dynamic risk factors, so the changeable risk factors that would increase someone’s risk of violent behaviour and violent offending. And, in my view, certainly it’s indicated in other documentation, others have been of the same view, but in my view his risk of reoffending is inextricably tied - particularly violent offending – to use of alcohol. So there’s a conditional risk. It’s a low risk but it’s conditional on him abstaining from alcohol.”[48]
[my underlining]
Cross-Examination of Dr Yoxall
[48] Transcript, page 64, lines 12 – 21.

Dr Yoxall was taken to page 14 of her report where she records that the Applicant told her “…. that he had not consumed any alcohol since the offending (including the period of incarceration) in a controlled environment where he has no access to alcohol.” She was asked whether her calculation of the Applicant’s risk of offending would change if she were told that the Applicant had, in fact, consumed alcohol after the offending on 1 January 2014. She replied with “possibly”. She was asked “In what way would it?” She replied with:
“Yes. So this is a very good question because alcohol is at the heart of this. It would depend upon the nature of the consumption, the volume of the consumption and his ability to regulate and manage his behaviour at the time of the consumption.”[49]
[49] Transcript, page 65, lines 38 – 41.
The Respondent’s representative maintained this line of questioning and asked “If, for instance, it involved sort of occasional drinking of, say, 6 beers, how would that sort of affect our risk of the risk of offending?” Dr Yoxall replied with:
“Well, I think I’ve said at the end [of her report] that if he drinks alcohol at all, I think he’s at a greater risk of reoffending. And I stand by that. In terms of the behaviour that he was engaging in between the charges and when he went into custody, you know, if he did engage in drinking 6 beers in a session - I’m calling it a session, I’m assuming it’s in one session or one event – I would be, you know, it does matter whether he was able to control his behaviour. So, for example, number one, if he’s drinking his risk factor goes up. And if he’s drinking and unable to control his behaviour, his risk factors go up even further. Can I calculate that into a percentage for you? No. But is it pertinent to his capacity to avoid offending? Yes, it is.”[50]
[50] Transcript, page 65, lines 44 – 47 and page 66, lines 1 – 7.
Dr Yoxall was then asked whether her immediately preceding comments would affect the Applicant’s VRAG score to some degree or his LSI-R score to some degree. With reference to the VRAG score, Dr Yoxall said her comments would not affect it because what the VRAG tool actually measures is previous behaviours. Thus Dr Yoxall explained that alcohol problems in the VRAG measuring tool”
“…are all about when alcohol is impacted in terms of the history, prior offending. Teenage problems or other further - or the current index offence involving alcohol. So if he drank alcohol after the offending, and he – there was no criminal activity associated with it, that wouldn’t have changed the VRAG.”[51]
[51] Transcript, page 66, lines 14 – 19.
Armed with the knowledge that the Applicant had consumed alcohol after the offending on 1 January 2014, Dr Yoxall said these things:
“… It would affect my clinical judgment, yes. So it wouldn’t affect the VRAG because the item is historical. It’s a static item. It wouldn’t actually affect the LSI because in the LSI you’re looking at the amount of control that he would have. And what I mean by that is he got an overall score in the LSI of five. If, indeed, it was identified that he was not managing his alcohol as well as he said - so we have a rating of zero to three on the alcohol item on the LSI – if, for example, there was some use that was moderately or minimally impacting upon him, that would get him an extra score, which would be six, which would still be under 13. So it wouldn’t actually show up in that. It would show up in terms of my clinical judgment, and I would have a concern about his capacity to abstain from alcohol without rehabilitation once he’s back in the community.”[52]
[52] Transcript, page 66, lines 23 – 34.
Dr Yoxall was asked: “Would you say that it would affect your clinical judgment to the extent of pushing him up to a medium category, or is that not possible to (indistinct)?” Dr Yoxall responded with:
“No, no, it wouldn’t no. But it would – no, it wouldn’t because of the reasons I’ve just given to you. The point here is once you get on the slippery slope of alcohol being linked to violence, the most conservative and appropriate step is just not to drink alcohol at all, and to abstain completely. And particularly in this regard, because he wasn’t a person who had an ongoing alcohol problem, so to speak, he had one incident where there were terrible outcomes in terms of his behaviour. So it’s even more important for this person that he actually makes a decision and abstains from alcohol full stop, because we don’t have any history to identify patterns of alcohol use relating to violent behaviour. So, clinically, I would say that it would indicate to me that he has got a greater need for, you know, formal rehabilitation to abstain from alcohol but I wouldn’t say that - but my estimate would still be the same that he’s at low risk on the condition he doesn’t drink. If he drinks, his risk goes up, but I can’t tell you a percentage of what that goes up to.”[53]
[53] Transcript, page 66, lines 38 – 47 and page 67, lines 1 – 5.
Finally, Dr Yoxall was asked whether she had any particular views as to whether the Applicant would have difficulty in re-establishing himself in Tonga. Dr Yoxall replied as follows:
“I do. I think that he would have – the difficulties in re-establishing himself in Tonga are very much to do with his embedded family in Australia. So he would have psychosocial difficulties embedding himself in Tonga, in my view, because of his family links here. Particularly his children. So that would be my view, that there would be psychosocial difficulties in embedding himself in Tonga.”[54]
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
[54] Transcript, page 67, lines 24 – 29.
Having regard to the nature and very significant seriousness of the Applicant’s offending committed on 31 December 2013 – 1 January 2014, were it to be repeated, there can be little or no argument against the proposition that the nature of the harm to individuals or the Australian community would be very significant.
In his approximately seven years in the Australian community (ie from 2008 until his incarceration in mid-2015), the Applicant has harmed three different victims. It can be fairly said that the violence and consequential harm perpetrated on two of those victims (the taxi driver and the Applicant’s former neighbour) was particularly significant. Thus the Respondent’s contention is fairly made: “He has already inflicted significant physical and psychological damage on the Australian community.”[55]
[55] Exhibit 4, Respondent’s SFIC, page 12, paragraph [37].
As noted by His Honour Farr DCJ, the Applicant’s violent offending on his former neighbour has caused that victim to suffer physical, emotional and psychological effects for the rest of his life. I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. I am of the view that the Applicant’s conduct for which he was sentenced in August 2015 is so serious that any risk that it may be repeated on another person in the Australian community is simply unacceptable. Were he to re-offend, the resulting harm would be very serious and it could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has acknowledged that alcohol was at the epicentre of his very serious offending. He is cognisant of the expert opinion of people like Dr Yoxall who make it clear that his risk of re-offending is directly proportional to his capacity to either control his alcohol intake or to abstain from alcohol altogether. He seemed well aware of the overriding theme of Dr Yoxall’s opinion which was that “…. If he drinks alcohol at all, I think he’s at greater risk of re-offending. And I stand by that.”
For the purposes of this decision, I am prepared to find that, in accordance with the views expressed by independent experts such as Mr Perros and Dr Yoxall, the likelihood of the Applicant engaging in further criminal or other serious conduct is low. But that is not and should not be the end of the inquiry in this case. The more critical finding involves making an assessment of whether one can accept the Applicant’s evidence about “never touching alcohol again”.
Were he to be returned to the Australian community, it is clear that he would return to either the same job or similar type of work that he did before he went into criminal custody and then immigration detention. The Applicant seems a friendly and approachable man who is just 35 years of age. Life in the general community – particularly his own work environment - will expose him to events or episodes that, in their own way, are inextricably linked to the consumption of alcohol. Culturally relevant events include, for example, Melbourne Cup celebrations, New Year’s Eve/Christmas period celebrations and, particularly relevant to the socio-demographic strata from which the Applicant derives, neighbourhood or community events around football grand finals or other significant football matches.
The difficulty with making a reliable finding about the likelihood of the Applicant’s re-offending is informed by two elements. The first element is in the Applicant’s favour while the second is not. First, it is rightly contended on behalf of the Applicant that during the period immediately following his commission of the very serious offences at the beginning of 2014 until his sentencing in August 2015, he was on bail, lived in the general community and went about his business without further offending or otherwise coming to the attention of law enforcement authorities.
The second element is that during the period comprising his time on bail (January 2014 to August 2015) and from the date of his sentencing until the present time, the Applicant has either been on strict bail conditions, in criminal custody or immigration detention. Thus the Respondent’s contention[56] is fairly made: the Applicant has not been exposed to any situation (of the type outlined above) in which alcohol may be available to him as an option. Thus the Applicant’s evidence about “never touching alcohol again” needs to be tempered by the reality that this intention has simply not recently been tested in the community.
[56] Ibid, page 13, paragraph [42].
The Applicant’s consumption of alcohol during the period he was on bail, while not conclusive, goes some way to demonstrating that complete abstinence will be a challenge for him. As mentioned, he knows that any assessment of his risk of re-offending has been predicated and conditionalized by Dr Yoxall on the basis that he does not drink at all. While I am prepared to find that his risk of re-offending is low (as did the Minister’s delegate), that finding must, in accordance with the independent and very expert opinion of Dr Yoxall, be conditional upon him entirely refraining from consuming alcohol. I am not sure that he can. As noted by Dr Yoxall, while she assessed the Applicant’s risk of re-offending as low, she made it abundantly clear – both in her written report and in her oral evidence – that such an assessment is directly related to the Applicant’s abstinence from alcohol.
I note that Dr Yoxall said the Applicant “…. would benefit from some ongoing support and counselling to ensure he does not relapse to alcohol use. This may involve individual alcohol counselling or group sessions on a monthly to six week basis”.[57] While there is evidence that the Applicant has accessed some counselling in regard to alcohol use and that he has frequented The Mens Shed at Bribie Island[58], there is no evidence that were he to be returned to the Australian community, the Applicant would involve himself in necessary counselling to achieve his stated objective of “never touching alcohol again”.
[57] Exhibit 2, Report of Dr Jacqui Yoxall, page 17.
[58] Ibid, page 9.
There seems to be some level of the ongoing support and counselling suggested by Dr Yoxall. It is provided to the Applicant via Ms Raewyn Burton, who is a director of Pacific Connect & Support Inc. This organisation is a non-government organisation which provides support and mentoring services to offenders of both Pacific Island and Non-pacific Island heritage. The aim of the organisation is not just to provide such support to people such as the Applicant while they are incarcerated. The organisation’s support extends to support for both former inmates/detainees when they are returned to the mainstream community. The organisation also provides support to the inmate/detainee’s family.
Ms Burton gave evidence at the hearing before me. These are the salient parts of her evidence in terms of her organisation’s ongoing support for the Applicant:[59]
“Ms Samuta: How frequently would you see or be in contact with Mr Ma’afu?
Ms Burton: So, in prison I do weekly support visits on a Monday with Borallon,[60] and so I supported him from that time onwards when he was in Borallon, and continued the support at ITA [sic], the Brisbane Immigration Centre, and that would be more frequent. So I can go in there once or twice a week, or even more sometimes, and then most detainees have access through telephone, 24 hours, and also through text message or email. So we talk quite frequently.
Ms Samuta: When you say “support”, what is that support?
Ms Burton: Okay, without going into huge detail, there’s a lot that goes into it, but mainly connecting and engaging, and referring on to the relevant services pertaining to whatever it is that their needs are. So with John, it has been with connecting with organisations to help him with things to do with his crimes, particularly with alcohol, but also just keeping the communication lines open is really important, and being able to connect and engage I find is one of the biggest success – or, you know, things that we have a lot of success with, being able to get rehabilitation through connection.
Ms Samuta: Those communication lines, is that in reference to their criminal offending and maybe rehabilitation?
Ms Burton: Everything.”[61]
[59] The Transcript’s reference to “Ms Samuta” is in her capacity as the Applicant’s legal representative in this matter.
[60] This is the prison in which the Applicant was held in criminal custody at the time Ms Burton first met him.
[61] Transcript, page 70, lines 6-26.
Ms Burton was then asked about how her organisation would assist the Applicant were he to be released back into the community. The following question/answer sequence ensued:
“Ms Samuta: So just to finish off the support aspect, does your support stop – well, you’ve gone from the prisons and now you’re supporting him at the immigration detention stage. If he’s successful in having his visa reinstated, does the support stop there once he’s released and free?
Ms Burton: Definitely not. That’s when our support kicks in the heaviest. Should he be granted to stay in the community, we engage specially – apart from him, we try and engage with the family, and try and get whatever support that we can identify and they can identify that they need. So with John, that’s a conversation that we have ongoing. Obviously they don’t really know what they’re going to need until they’re out there. With past prisoners and visa cancelation, especially 501s, we stay with them, and that’s really important, because everybody is different when they come out. They all react differently to their surroundings being out in the community and so we really continue with that connection and we get in as much as we can so we can find out how we can get them to the next stage and the next stage, until we know what they’re starting to float a little bit better in the community, and we don’t ever really come away from them. We are still in contact, and that’s something we’ve discussed, and Christine as well, and would continue to do that and identify whatever it may be. We would be there 100 per cent for that support.”[62]
[my underlining]
[62] Transcript, page 71, lines 36-47 and page 72, lines 1-7.
During her evidence in chief, the Applicant’s wife was asked about her level of toleration for alcohol in the family home were the Applicant permitted to return there. The following question/answer sequence ensued:
“Ms Samuta: If John comes home would you tolerate – well, would you welcome alcohol in the house or would you…?
Mrs Ma’afu: Absolutely not. I’m not – I very seldom drink alcohol myself, it’s – and if I drink alcohol it’s never around the children. I have no history or interest in – I’ve never had any problems with alcohol or other substances and I’ve made it very clear to my husband that – and he knows that at our home there is – there is nothing of that nature. He knows how I feel about alcohol with him coming back home. There’s – there will be no alcohol and I’ll make sure that there’s – you know, it becomes an alcohol free environment and if he ever, you know, went to a wedding or a party, or something like that, you know, there’s always – you can celebrate going to parties and weddings and that – you know, I’ve never – never, touched the alcohol and it’s quite fine to, you know, you can get through life and, you know, it’s – so it’s never a temptation I guess, is what I’m saying.
Ms Samuta: So, would you tolerate him drinking any alcohol?
Mrs Ma’afu: No. No, I’ve made it very clear to him that if I find – if I find he is drinking anything, he puts the relationship in jeopardy and the children because I will not tolerate it and I will not tolerate going through this all over again.
Ms Samuta: What do you mean in jeopardy?
Mrs Ma’afu: He puts the marriage and his relationship with the children on the line. He also puts his – his chance of being in Australia in jeopardy – losing his visa, for example, and being sent back to Tonga. It’s – it’s just don’t touch alcohol and he doesn’t risk his marriage or his relationship with his children. He doesn’t risk having to be sent back to Tonga.
Ms Samuta: When you say put at risk, would you leave John?
Mrs Ma’afu: Quite potentially, yes, because I just do not want to be going through it all over again and we discussed this in depth that it’s – alcohol would not be tolerated.”[63]
[63] Transcript, page 55, lines 36-47 and page 56, lines 1-21.
To repeat, while my finding is that his risk of re-offending is low, that finding can only be a conditional one. It is not a finding that inspires any convincing level of confidence that the Applicant will not engage in further binge drinking sessions and engage in further criminal conduct in the future. The severity of the harm his offending has caused to date is such that any risk of its repetition is a risk that the Australian community should not have to bear.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a conditionally low likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his consumption of alcohol.
Were he to re-offend, the harm that would be occasioned to others would, as it has been thus far, be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

I am mindful of the elements necessary to be applied in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist decision-makers in reaching a decision that accords with the expectations of the Australian community.
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[78] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[78] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[79]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[79] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[80] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[my underlining]
[80] [2018] FCA 1311 at [85].
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[81] To my mind, the key words from this passage are “…informed, reasonable member of the Australian community”. These words ought reasonably imply that such a member of the Australian community, in deciding whether someone should retain a visa to stay here, would properly and reasonably inform themselves of, and take into account, the critical and unique domestic factors inherent in this case.
[81] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
All too often in applications of this type, the Applicant (most often a male) is threatened with removal from Australia for prior offending conduct. In the overwhelming number of these cases, the adverse impact of that removal upon the lives of infant children is ameliorated by either: (1) the financial capacity of the remaining parent/spouse to properly and adequately care for the children, and/or (2) the adequate and pre-existing support networks available to the remaining parent/spouse to, with not inconsiderable difficulty, pick up the cudgels of acting as the sole and primary caregiver to the infant children, and/or (3) the removed Applicant’s capacity to maintain contact with the infant children by digital or electronic platforms.
The difficulty and uniqueness of the present case is that none of these options are available to Mrs Ma’afu were the Applicant be removed to Tonga. Mrs Ma’afu’s financial circumstances – even with the income she derives as a horticulturalist – has led her to actual bankruptcy and a position little better than penury, relying, as she does, on gratuitous and benevolent deliveries of food hampers from Christians Against Poverty to meet her recurring financial shortfall in covering the cost of daily essentials such as groceries. Without the physical presence of the Applicant, Mrs Ma’afu’s support networks for assistance with her homemaker and parent responsibilities are virtually non-existent. Solace cannot be found in the Applicant’s family either. But for his brother who is based in Sydney, the Applicant has no other immediate family in Australia who have ever played a parental role in the lives of the children.
While it can be said that the Applicant could maintain a relationship (of sorts) with the children via digital or electronic means, that is not enough for this family for several reasons. It is not enough because the other half of the parenting equation remaining in Australia – Mrs Ma’afu - is so precariously placed in terms of her health that not only will she conceivably lose the physical (and possibly mental) strength to properly parent the children, her Type-1 Diabetes condition – causing her to have diabetic seizures and to lapse into diabetic comas – actually presents a danger to the wellbeing of the children. This danger cannot be ameliorated by the Applicant communicating with the children and Mrs Ma’afu via a digital or electronic platform. Apart from him, there is no one else to assist Mrs Ma’afu with the sole homemaker and parent responsibilities that will exclusively devolve to her were the Applicant to be removed.
Put simply, I cannot accept that an informed and reasonable member of the Australian community, taking into account the unique circumstances of this case, would consider that Mrs Ma’afu’s ongoing precarious capacity to solely parent the children is a sustainable proposition. Likewise, I cannot accept that such a member of the Australian community would consider that the dire domestic situation confronting the Applicant’s family as a result of his time in criminal custody/immigration detention would be improved or, indeed, be sustainable at all as a result of his permanent removal from Australia.
The resulting question is not whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country. That question is too simplistic and is ignorant of other critically important factors generic to this case.
Rather, the Australian’s community’s expectations arising from the present factual matrix can, to my mind, be gauged from the outcome of the balancing exercise between two principle factors inherent in this case:
(a)whether an informed and reasonable member of the Australian community would simply consider that the nature of the Applicant’s offending is such that he cannot expect to hold a visa to remain here; and
(b)whether an informed and reasonable member of the Australian community would have regard to the uniquely dire domestic circumstances that already confront and will most likely more severely confront Mrs Ma’afu and her capacity to solely parent their two infant children were the Applicant to be removed from Australia.
A holistic and fulsome understanding and consideration of the evidence before the Tribunal leads me to a finding akin to the immediately preceding sub-paragraph (b). I think an informed and reasonable member of the Australian community would expect this Tribunal to not endorse a finding supportive of the removal of the Applicant from Australia in circumstances where such a finding would result in the fragmentation of that family unit that would, quite conceivably, manifest as follows:
(i)A denial of any supportive network for Mrs Ma’afu:
a.in terms of her own depreciating health, and, consequently,
b.in terms of her role as homemaker and parent for the children;
(ii)The quite conceivable removal of the children from Mrs Ma’afu and their placement in either foster care or other institutionalised state-based care.
I am mindful of the very serious nature of at least one component of the Applicant’s offending that was dealt with in August 2015. I am also mindful that despite Dr Yoxall’s assessment that he is at a low risk of reoffending, that assessment is conditional upon the Applicant abstaining from alcohol. While it can be said that the Applicant’s claims of abstinence from alcohol have largely occurred in the closed confines of criminal custody/immigration detention and have not been tested in the broader community, that contention is not entirely correct. He was on bail from January/February 2014 until August 2015 and did not re-offend during that period due to alcohol or any other factor.
I therefore find that the Australian community would consider that this Applicant, who has committed some very serious offending, has breached the trust they have placed in him to obey Australian laws while in Australia. However, having regard to the unique, dire and very serious domestic circumstances that will inevitably arise as a result of his removal from Australia, I think an informed and reasonable member of the Australian community would expect this Tribunal to not endorse a finding supportive of the Applicant’s removal from Australia.
At the Hearing, the Applicant spoke of wanting to return to the community to, in effect, re-establish his life and to re-define his relationships with his immediate and extended family in Australia. To his credit, he has completed a commendable number of vocational courses/programs while in criminal custody/immigration detention.[82] He spoke of wanting to “be there” for his children and otherwise striving to positively participate both in their lives and as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[83]
[82] Exhibit 5, s 501 G-Documents, G2, pages 125 – 138.
[83] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
I have considered the nature of the Applicant’s offending and have accepted the conditional findings of Dr Yoxall (and others before her) about the Applicant’s low risk of reoffending. I particularly stress the findings I have made about (1) the uniquely serious and dire domestic situation already confronting the Applicant’s immediate family given Mrs Ma’afu’s serious health issues and (2) how that domestic situation will most likely irretrievably deteriorate into the combined scenario of (a) a worsening of her health and (b) the permanent removal of the Applicant from the family unit.
Having regard to the immediately preceding factors together with my other findings in these Reasons and the unique factual circumstances surrounding the Applicant’s immediate family in Australia, I am satisfied that an informed and reasonable member of the Australian community, applying contemporary Australian values and standards, would favour giving this Applicant a second chance.
Caution should be exercised in approaching the term “second chance” for present purposes. It involves (and can only involve) the restoration of the Applicant’s Class WE Subclass Bridging E visa. It does not involve the conferral of a right to indefinitely remain in Australia as an Australian citizen. The “second chance” is more akin to the extension of a privilege to remain here on a conditional, temporary visa until such time the Respondent (or a delegate of the Respondent) grants him another conditional, substantive visa.[84]
[84] See the Act, Subdivision AF, ss 72-76.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that:
(i)the Australian community would consider that this Applicant, who has committed some very serious offending, has breached the trust they have placed in him to obey Australian laws while in Australia; and
(ii)taking into account the unique, dire and serious domestic consequences now confronting his family consequent upon his absence to date, the community’s expectations in respect of this particular Applicant are that he be given a second chance to re-establish his life here and that, accordingly, this Tribunal should not endorse a finding supportive of his removal from Australia.
I accordingly find that this Primary Consideration C is of neutral weight on the question of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)    International non-refoulement obligations;
(b)    Strength, nature and duration of ties;
(c)    Impact on Australian business interests;
(d)    Impact on victims;
(e)    Extent of impediments if removed.[85]
[85] The Direction, paragraph [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
There is no suggestion that Australia owes non-refoulement obligations to this Applicant. This Other Consideration (a) is of no relevance to this decision.
(b) Strength, Nature and Duration of Ties
There is a ready acknowledgment by the Respondent that his wife and their two infant children (all Australian citizens) reside in Australia.[86] As against that, the Respondent contends that although the Applicant arrived here in July 2008, his first three years in this country (December 2008 - December 2011) should be somehow discounted or tainted from his time here due to him being here without a valid visa.
[86] Exhibit 4, Respondent’s SFIC, page 16, paragraph [65].
From one perspective, that contention is fairly made: the Applicant did not prioritise the fundamental requirement of securing the necessary visa to remain here. Such conduct is, to an extent, demonstrative of a less than complete respect for lawful authority as it related to his then visa status. From another perspective, although he was unlawfully in Australia in this period, he did nothing to attract the attention of any law enforcement authority nor can it be said that he was deliberately evading the attention of such authorities as would be the case, for example, on a breach of bail.
The Respondent further seeks to constrict the Applicant’s time in this country by referring to his removal from the Australian community for the period August 2015 to date. Again, from one perspective, that contention is fairly made: the Applicant’s conduct has been such as to cause his removal from our community for that period of time. As against that, he has not offended in prison, has maintained the healthiest possible relationship with his family even while incarcerated and has completed an impressive list of both vocational and rehabilitative courses.
It is submitted on behalf of the Applicant that this Other Consideration (b) should weigh strongly in favour of exercising the subject discretion.[87] According to this contention, the favourable exercise of the discretion derives from:
·The Applicant’s arrival in Australia in 2008, his marriage to an Australian citizen in 2011 and the subsequent birth of their two infant Australian citizen children;
·Prior to his offending, his participation in gainful and remunerative employment;
·His willingness to participate and contribute at a community level;
·The effect of a non-revocation decision on the Applicant’s immediate family in Australia.[88]
[87] Exhibit 1, Applicant’s SFIC, page 16, paragraph [81],
[88] Ibid.
It cannot be said that the Applicant has been dilatory during his time in this country. Those for whom he has worked speak positively of him. For example, the Executive General Manager of Bradley Industries (Qld) said:
“21 June 2017
To whom it may concern;
…
We are hopeful that upon completing his incarceration he [The Applicant] is able to recommence immediate employment with Bradley Industries Qld (BI). Should we need to sponsor John with a visa application, assist with a return to work program, or any other requirements, we are more than happy to undertake such processes.
John has been an invaluable employee within our company. We have sought to fill his position several times and whilst we have managed to some extent, his skills, knowledge and performance he brings, are difficult to replace.
As an integral part of the BI team, if there is any opportunity for him to return we will be extremely grateful. John has been sadly missed by the BI team both personally and professionally.
Within our working environment, John has always carried himself with respect both, earnt [sic] and given and we are looking forward to establishing that rapport again. He was a model employee during his original tenure and we are sure he will be again.
…
Yours sincerely
Campbell Venables
Executive General Manager
Bradley Industries Qld
…”[89]
[89] Exhibit 5, s 501 G-Documents, G2, page 124, reference of Mr Campbell Venables, Executive General Manager, Bradley Industries Qld.
By way of further example:
“9 August 2018
To whom it may concern,
I am pleased to provide this reference for John D Ma’afu.
John currently works for Australian Framing Solutions as Trust Machine Operator. He is a very devoted and enthusiastic employee who always puts in 100% to all tasks given. John is a very reliable employee who always shows up with a can do attitude.
In the time he has worked for us, John shows that he works well within a team, always meets targets and keen to help others. He is always respectable and responds well to Instructions.
We have enjoyed having John on our team.
Kind regards
Leanne Butt
General Manager”[90]
[90] Ibid, page 139, reference of Ms Leanne Butt, General Manager, Australian Framing Solutions.
In terms of immediate family, the Applicant’s mother, father, brother and two sisters all reside in Tonga. In Australia, his immediate family comprises one brother who lives in Sydney. He has a sister who lives in New Zealand. In terms of extended family, he has two uncles in Australia and one in Tonga, two aunts and two cousins in Australia.
Paragraph 14.2(1)(a)(i) of the Direction stipulates that less weight should be given to this other consideration in circumstances where the non-citizen began offending soon after arriving in Australia. In the instant case, the Applicant offended on 31 December 2013-1 January 2014, some five years and a half years after arriving here. I do not think it appropriate that the amount of time he resided here without a visa (three years) should be deducted from those five and a half years. Plainly, if he was going to offend during the period July 2008 to say, November 2013, he would have done so regardless of whether or not he held a visa. He would have done so if he were a serial and consistent offender. He is not that. I am not of the view that this particular paragraph of the Direction attracts any weight in favour of or against revocation.

Paragraph 14.2(1)(a)(ii) of the Direction stipulates that more weight should be given to this Other Consideration (b) in circumstances where the non-citizen has made positive contributions to the Australian community. Even a cursory review of the relevant material indicates a unanimous view amongst his supporters and referees of his constructive willingness to engage with others and to otherwise do the right thing by those around him.[91] Accordingly, this specific paragraph of the Direction does attract a measure of weight in favour of the Applicant.
[91] See Exhibit 5, section 501 G-Documents, G2, pages 114-124 comprising various letters of support.
It is pertinent to have regard to Mrs Ma’afu’s evidence about a wholesale relocation of this family to Tonga. The following question/answer sequence appears in her evidence in chief:
“Ms Samuta: Have you spoken about moving to Tonga with the children: is that an option?
Mrs Ma’afu: We have and it’s not something I’m happy with at all doing. Someone who is raised in a fortunate country like Australia, women and children, you know, I think have much better prospects of schooling, much better schooling and work opportunities and careers. You know, better healthcare system, a safer environment and being in Tonga I just – I have that fear that they’re just not going to have those opportunities or that future. I worry about their safety or their health. My youngest one is borderline asthmatic, so I worry about her health becoming worse. They used to have a history of allergies and concerns about that returning if they don’t get the check-ups and that and the care that they would get over there. I – its – not to mention the job – the job opportunities for work. I just do not know what – what I don’t know what future I would have in Tonga compared to being in Australia…[92]
…
Ms Samuta: Have you and John spoken about how you would – well – I guess how do you move on from that, you as a partner, following his convictions and sentencing, how have you and – how do you move on from that in terms of…?
Mrs Ma’afu: Well, I’m a very, I guess, understanding and forgiving person. I love my husband with all my heart and I know who he – who he really is as a person. I met my husband and got to know him without all the – without the problems from that night and I’ve met his family and I know – I – you know, I’ve – and I’ve seen how he is with the children. I’ve seen how he treats me. I – I haven’t been treated the best in the past and he is one of the only people that I fully feel safe with and feel that my children are safe with and I would not do that unless I 100 percent trusted my husband and knew that what had happened that night was a once off and it was without – without alcohol in his life, I don’t think anything like that would ever happen. Its never happened before and he also has a – we have an understanding that it is not something that I would ever tolerate ever happening again either and he – and I believe that it would never happen again anyway. I know from my husband that he is very remorseful and shocked by what he has done because it is so out of his character to do anything like that. He is a very giving big hearted man and he spends so much of his time helping people, strangers even – and loves children and loves the community… I just think he has so much potential that if he was sent back to Tonga I just – I would be devastated for him and I think I would be devastated for my children.”[93]
[92] Transcript, page 52, lines 4-16.
[93] Ibid, page 53, lines 34-47 and page 54, lines 1-9.
The Applicant’s strength, nature and duration of ties to this country are, to my mind, best gauged not simply by summarising those factors or ties in a historical and current sense, but by (1) understanding those historical and current ties and (2) understanding how those historical and current ties could be irredeemably jeopardised were he to be permanently removed from Australia consequent upon his incarceration in August 2015. Put simply, the strength, nature and duration of his ties to Australia should be measured by the extent to which he is needed here and now. He is needed as virtually the “last chance” default option to resolve the impending malaise that will inevitably confront Mrs Ma’afu and the children were her health to worsen. The unfortunate indicators are that it will.
Paragraph 14.2(b) of the Direction provides that in deciding whether to allocate any weight to this Other Consideration (b), a decision-maker, should have regard to “The strength, duration and nature of any family and or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-recovation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).” [my underlining]
I have already recounted, in detail, my findings about the unique and very dire domestic circumstances confronting Mrs Ma’afu and the children as a result of the Applicant’s absence thus far. I have similarly recounted, in detail, the very serious and dire impact upon the domestic circumstances of the Applicant’s immediate family were he to be permanently removed from Australia. For these reasons, I consider that paragraph 14.2(b) of the Direction merits the allocation of a strong measure of weight in favour of a finding that the Applicant’s migration status in this country be restored to him.
I thus allocate a strong level of weight to this Other Consideration (b) in favour of the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s subject visa.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration (c) is of relevance to determining this Application.
(d) Impact on victims
I am mindful of the comments of His Honour Farr DCJ, in his sentencing remarks made on 19 August 2015, where His Honour speaks of the injuries suffered by the taxi driver victim and the neighbour victim. While a helpful summary of those sentencing remarks appears in the Respondent’s Statement of Facts, Issues and Contentions, the Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s).
Accordingly, I cannot find that this Other Consideration (d) attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:
(a)the person’s age and health;
(b)whether there are substantial language and cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is a relatively young man of 35 years of age. There are no apparent health (mental or physical) issues in his history apparent in the material. Were he to be returned to Tonga, there is no evidence of any language or cultural barriers militating against his capacity to re-settle there. He has a sizeable family in that country. While Tonga may not have identical social, medical and/or economic support to that available to the Applicant in this country, it is not at a level such that he should have little difficulty in residing there and maintaining basic living standards at or about the same level to which he is accustomed in this country.
Regard must also be had to the ambit of paragraph 14.5(1) of the Direction which relevantly stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country.
To the extent the Applicant may face initial difficulty in re-establishing himself in Tonga, that difficulty and any other impediments would not be insurmountable given his work history, experience, qualifications and the support of a sizeable number of immediate family members already in Tonga.
I find that this Other Consideration (e) weighs in favour of the non-revocation.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: is of no relevance to this consideration;
(b)Strength, nature and duration of ties: is of strong weight in favour of revocation;
(c)Impact on Australian business interests: not relevant to this consideration;
(d)Impact on victims: is of no weight to this consideration; and
(e)Extent of impediments if removed to: weighs in favour of non-revocation.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, I find that there is another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs in favour of non-revocation;
·Primary Consideration B weighs strongly in favour of revocation and outweighs the weight I have attributed to Primary Consideration A;
·Primary Consideration C is of neutral weight;
·Other Consideration (b) weighs strongly in favour of revocation;
·Other Consideration (e) weights in favour of non-revocation;
·Other Considerations (a), (c), and (d) and are of either neutral weight or of no relevance to my consideration;
·The combined weight of Primary Consideration B and Other Consideration (b) favouring revocation outweigh the combined weight of the remaining Primary and Other Considerations in favour of non-revocation;
·An application of the Direction to a holistic view of the evidence favours the revocation of the decision to mandatorily cancel the Applicant’s visa.
Consequently, I find that there is another reason to revoke the original decision to cancel of the Applicant’s visa.
CONCLUSION
The decision under review is set aside and substituted such that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 194 (one hundred and ninety - four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.........................[SGD]...............................................
Associate
Dated: 9 April 2019

Date(s) of hearing: 1 April 2019

Advocate for the Applicant: Ms Jennifer Samuta

Solicitors for the Applicant: Samuta McComber Lawyers

Advocate for the Respondent: Mr Daniel Thambar

Solicitors for the Respondent: Clayton Utz

[2019] AATA 684

9 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Court	Court Date	Offence	Court Result
Pine Rivers Magistrates Court	22 June 2013	Being drunk and disorderly in premises to which a permit/licence relates	No conviction recorded; entered into a recognisance in the sum of $200 to be of good behaviour for a period of six months
Brisbane District Court	19 August 2015	Commission of acts intended to maim/disfigure/disable Assaults occasioning bodily harm Common assault	Conviction recorded and sentenced to a term of imprisonment for seven years. Conviction recorded and sentenced to a term of imprisonment for 12 months Conviction recorded and sentenced to a term of imprisonment for one week
Queensland Court of Appeal	22 March 2016[21]	Application for leave to appeal against sentence imposed on 19 August 2015	Outcome on appeal: application for leave to appeal refused.

Date(s) of hearing:	1 April 2019
Advocate for the Applicant:	Ms Jennifer Samuta
Solicitors for the Applicant:	Samuta McComber Lawyers
Advocate for the Respondent:	Mr Daniel Thambar
Solicitors for the Respondent:	Clayton Utz