Mafi Tokelau and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 975
•2 May 2025
Mafi Tokelau and Minister for Immigration and Citizenship (Migration) [2025] ARTA 975 (2 May 2025)
Applicant/s: Mafi Tokelau Akau’ola Laula
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2025/1281
Tribunal:Senior Member K Rosser
Place:Sydney
Date:2 May 2025
Decision:The decision under review is affirmed.
..................[SGD]...................
Senior Member K Rosser
CATCHWORDS
MIGRATION – Cancellation of a Class TY, Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the cancellation – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – interests of minor – legal consequences of decision under review - impediments
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Migration Act1958 (Cth)
Migration Regulations1994 (Cth)CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FHHM v Minister for Immigration [2022] FCAFC 19
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 86
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 488
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration [2018] FCA 594SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Bench Book – Judicial Commission of New South Wales – November 2024Statement of Reasons
INTRODUCTION
This is an application for review of a decision of a delegate of the Minister dated 13 February 2025 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (visa).
The application was listed for a face-to-face hearing on 14 and 15 April 2025. Shortly before the scheduled commencement of the hearing on 14 April, the Tribunal was advised that due to unspecified “staffing issues”, the applicant could not be transported from Villawood Immigration Detention Centre (IDC) to the Tribunal. I considered it inappropriate to conduct the hearing by video conference in circumstances where the applicant is self-represented. In any event, IDC staff were unable to properly connect the applicant to the Tribunal’s video conferencing facilities.
The hearing was accordingly adjourned until 15 April 2025. The applicant was present at the hearing, supported by members of his extended family. He represented himself. Mr Valliappan, solicitor, appeared for the Minister.
For the following reasons, I have decided to affirm the decision under review.
JURISDICTION
The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A), where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, the application for review was lodged on 21 February 2025, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.
EVIDENCE AND SUBMISSIONS
In deciding the application, I have considered:
(a)The applicant’s bundle of documents – Exhibit A1
(b)The Minister’s bundle of documents – Exhibit R1
(c)Selected material summonsed from NSW Police, Parramatta District Court and the NSW Department of Corrective Services – Exhibit R2
(d)The Minister’s statement of facts, issues and contentions (SOFIC) – Exhibit R3
(e)The Minister’s chronology of relevant facts – Exhibit R4
(f)The “G documents” - Exhibit G
(g)The oral evidence given by the applicant, his partner Ms Rowena Tato (Ms T) and his brother Marg Akau’ola Laula (MAL)
(h)The closing oral submissions made by the applicant and by Mr Valliappan.
All exhibits are included in the Hearing Book (HB).
Relevant parts of the oral evidence and submissions are considered below.
BACKGROUND
Applicant’s personal background and offending history
The following background is taken largely from the chronology submitted by the respondent and the respondent’s statement of facts, issues and contentions (SOFIC),[1] the sentencing judge’s remarks[2] and from other material contained in the HB.
[1] HB pages 561 to 575.
[2] R v Mafi Tokelau Akau Ola Laula 2020/00074656 - HB pages 46-69.
The applicant is a citizen of New Zealand of Tongan ethnicity, who was born in Auckland on 22 December 1995. He has lived in Australia since 14 September 2015, when he arrived as the holder of the special category visa.
On 28 February 2020, the applicant sexually assaulted a woman with whom he worked (the victim) and recorded an intimate image, without her consent.
The agreed facts concerning the applicant’s offending are set out in the sentencing remarks of the sentencing judge of Parramatta District Court of NSW as follows:[3]
[3] HB pages 47-49.
The offender is 24 years of age and worked with the victim who was 32 years of
age …. They are native Tongans,
although I believe both were raised in New Zealand. Their families had come
to Australia. It was established their families came from the same town in
Tonga.
At about 10.50pm on 27 February 2020, the victim finished work and
caught a train home. She texted the offender and asked if he was at work. He
said he was not. She asked if he wanted to hang out, and they agreed to meet
at Liverpool train station. She asked where they could hang out, and it was
suggested at her place. She said, “As long as it wasn’t going to be weird”.
The accused gave the victim directions to meet him at Glenfield train
station, and there they met and travelled to Liverpool together, arriving at about
20 past midnight on Friday 28 February 2020. They went to the victim’s unit,
which was 15 minutes away. She told him he could watch Netflix and gave
him the remote control while she went upstairs to shower, spending about an
hour there. When she returned she was wearing a bodysuit, a sweater and a
pair of sweatpants.
At 1.30am, she returned downstairs. He was sleeping on the mattress
in the lounge room. She opened the fly screen, had a cigarette, came back
inside. He was awake. He was lying on the mattress under the covers. He
told her he could not use Netflix, because he did not have a code, and she
provided it. He then lifted the blanket, grabbed her pants and pulled them
down. She said, “Stop, what the fuck are you doing?”
He continued pulling the victims pants. She said, “I don’t know your
age. I don’t do guys from work. I don’t do Tongans. I don’t know if you’re
clean. Please, please, stop”, and kicked out at him. He did not stop. He
continued to pull at her body suit and unclipped it at the bottom and pulled her
pants down until they were around her ankles.
She said, “Stop, what the fuck are you doing?”. He took hold of her
arms above her head. She tried to push him away. She scratched his left
wrist. She said, “I lay there with my kids sometimes”, referring to the bed. He
then forced his penis into her vagina and began to thrust. He pulled his shirt
off and pulled off the victim’s jumper and bra when trying to remove them. He
continued having sex. She continually asked him to stop (count 1). He
stopped, rolled over, and said he was going to sleep. She froze, but eventually
fell asleep.
At about 4.30am, she woke to find him climbing onto her back, and he
inserted his penis into her vagina, and she said, “Not again”. He laughed and
began having sex with her. She told him to stop several times, but he did not
(count 2, Form 1 offence). He then removed his penis from her vagina and lay
on the bed and told her to suck his penis, which she did for about 5 minutes.
He then told the victim to face the TV and got onto her hands and knees. He
pushed her down by pushing his hand on her back, positioned himself behind
her and put his penis into her vagina. He then laid back on the bed and told
her to ride him. She sat on his penis. She felt pain. He pushed his thumb into
her anus, and she yelled, “No”. His penis came out of her vagina, and she
said, “Ouch”.
The offender told her to turn over onto her knees. She knelt, he got
behind her and put his penis into her vagina, reached for his phone. She said,
“What are you doing?” He said, “Can I take a video?” She said, “No”. She
saw a flash from the camera and said, “delete it”. He said, “I’m not taking any
video”. She saw the flash again from the camera (s 166 Certificate offence).
She tried to grab his phone. He said, “Do you know everyone at work wants
you?” and threw the phone out of her reach. He then told her to turn around
and laid on top of her and forced her down, put his penis inside her vagina,
had sex with her again, and said, “You now do Tongans” (count 3). He
stopped.
He said he had ejaculated on her legs. She could not feel any sperm.
She said, “You’ll have to buy the morning after pill”. He said, “I didn’t even
cum in you”. He laid back on the mattress. She waited for him to fall asleep.
She took some photographs of him. A few hours later, she woke to find him tapping
her on the arm. He was fully dressed. He gave her a high five when she put her hand
out. He left the unit. She had a bath.
The victim reported the matter to the police on 6 March 2020. The applicant was arrested on 8 March 2020 and was granted conditional bail on 12 March 2020. He was committed for trial on 11 November 2020.
The applicant’s Australian citizen daughter, Temaleti Trinity (TT), was born on 1 October 2022.
On 17 August 2022, Dr Jane Lonie issued a neuropsychological report in relation to the application, for sentencing purposes.[4] Dr Lonie relevantly concluded that:
·The applicant has borderline intellectual function with limited literacy skills, ranging from year 3 to year 5 primary school level.
·His memory and new learning abilities fall well within a normal range.
·The applicant’s cognitive ability to infer meaning and understand and appreciate the perspectives of others through the use of verbal and visual communicative is notably limited, falling at around the lowest 2nd percentile of his age peers.
·The applicant remains capable of following and responding appropriately to simple conversation and instruction. However, his limited and extremely low levels of social cognition would place him at a disadvantage relative to his peers in situations where he is required to make use of and infer from social cues in the form of facial expression and voice tone and prosody, in order to deduce the meaning and intent of others.[5]
[4] Dr Jane Lonie – Report dated 17 August 2022 – HB pages 292 – 299.
[5] Ibid at pages 292 – 299.
On 14 November 2022, Mr Graham Randall issued a psychological treatment report, also for sentencing purposes.[6] Mr Randall reported on the applicant’s eight treatment sessions until the date of the report. These sessions broadly focused on sexual offending, including an understanding of how the applicant came to be charged with the offences. Mr Randall stated that a key focus of the sessions to date had been on development of empathy. This would also be a focus of future sessions, as would building positive protective factors such as engagement in pro-social activities and the development of a strong, positive support network. Mr Randall stated that over the course of treatment to date, the applicant had come to recognise the impact of the disjointed parenting he experienced throughout his childhood and adolescence as well as to recognise the impact this had on his offending behaviour. He considered that the applicant had made significant progress and would make further progress if he were able to continue his sessions. Mr Randall also stated that the applicant had expressed great shame and remorse for his offending behaviour. He anticipated that the applicant would require approximately ten to fifteen more sessions to successfully complete the treatment program.
[6] Report of Graham Randall, registered psychologist, HB pages 252-259.
Conviction and sentence
The applicant pleaded guilty to and was convicted of the offences on 17 November 2022. He was convicted of two counts of sexual intercourse without consent and knowing the victim was not consenting. Both offences are contrary to s 61I of the Crimes Act 1900 (NSW) (the Crimes Act) and carry a maximum penalty of 14 years imprisonment, with a standard non-parole period of 7 years. The applicant also pleaded guilty to and was convicted of one count of recording an intimate image of the victim without consent and knowing she was not consenting. That offence is contrary to s 91P(1) of the Crimes Act and has a maximum penalty of 3 years imprisonment. A further count of sexual intercourse without consent (Form 1 offence) was taken into account when the applicant was sentenced.[7]
[7] When sentencing an offender for an offence (the principal offence), a court may take into account additional charges with which the offender has been charged but not convicted (further offences). The offender must want the further offences to be taken into account and a court may only take the criminality of those further offences into account if certain criteria and formalities have been met: Crimes (Sentencing Procedure) Act 1999 ss 32, 33 and 35A. See Sentencing Bench Book – Judicial Commission of New South Wales – November 2024 – at [13.100] - Accessed on 25 March 2025. The Form 1 offence is not a conviction. See Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 488 at [53] to [54] and Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 86 at [117].
The sentence for the sexual assault offences was three years for each offence. The sentence for the recording an intimate image offence was six months. The applicant was sentenced to an aggregate sentence of imprisonment of four years with a non-parole period of two years.
The sentencing judge found that the offending fell between the mid and low range for offences of this kind and that there was little to distinguish each of the offences. The judge noted that the offences took place in the home of the victim where she should have been entitled to expect a degree of protection and safety, which was breached by the applicant’s behaviour towards her when he had been invited there as a friend and potentially as someone who she thought may have even been related because their families come from the same town. This was considered to be an aggravating factor.
The sentencing judge considered the impact upon the victim to be another aggravating factor, noting that the offending was not insubstantial and had had “a significant impact upon [the victim’s] life in quite tragic circumstances where she does not have the capacity to care for her children”.[8]
[8] HB at page 54.
Relevantly to the application for review, in terms of mitigating factors the sentencing judge found that:
·Having no prior convictions, the applicant could be treated as a person of good character.
·A letter of remorse he wrote to the victim demonstrates a degree of genuine remorse on his part.
·The empathy the applicant’s family and friends reported that the applicant had for the victim in references provided to the Court was further demonstrated by the fact that the victim was not required to give evidence at trial.
·The applicant’s youth and immaturity were mitigating factors.
·The applicant may have thought that the victim was consenting to some extent or was interested in him sexually but failed from either his immaturity or inability to appropriately recognise her unwillingness to participate in having sexual intercourse with him. However, in view of the clear statements the victim made to him, this did not impact to any significant extent on the applicant’s moral culpability in the commission.
·The applicant’s immaturity or inability to recognise the victim’s unwillingness to have sexual intercourse with him, together with the applicant’s underlying mental health issues would be considered in the overall mix of mitigating factors.
·The process of being charged, going into custody and going through the criminal process and attending court had been a significant specific deterrent to the applicant and he had good prospects of rehabilitation and not reoffending.
·In all the circumstances and particularly in light of the inherent serious nature of the offending a custodial sentence was appropriate.
Conduct in prison and immigration detention
The documents summonsed from the NSW Department of Corrective Services indicate that the applicant’s conduct in prison was appropriate. During the period of his incarceration, he completed several courses, including in first aid, commercial painting and rehabilitation through religious faith (‘The Prisoner’s Journey’).
While incarcerated, the applicant also completed a program for sex offenders, the Moderate Intensity Sex Offender Program (MISOP). A report prepared prior to the applicant’s release from prison refers to his participation in this course as follows:[9]
[9] HB pages 382 to 391 at pages 385 to 386.
Mr Akau Ola Laula completed the MISOP on 21 December 2023. His treating
psychologist advised that he was a well engaged program participant, who made
meaningful progress throughout his time in treatment. He gained insight into his
offending behaviour and developed skills and knowledge to manage any future risk
in relation to this. Mr Akau Ola Laula also strengthened his interpersonal and coping
skills throughout treatment, and he integrated these into his self-management plans.
The MISOP report identified that Mr Akau Ola Laula most notably developed his
communication skills and understanding of consent. The following risk factors were
identified as having contributed to Mr Akau Ola Laula's pathway to offending;
feelings of loneliness and sadness, low self-esteem, lack of understanding of
consent, engaging in justification and using sex to cope. To address the
aforementioned risk factors, the following recommendations were made and include;
utilising the support of his partner and family, transparently communicating his needs
and concerns with family and maintaining set boundaries, with a greater focus on
himself, his partner and daughter. Further recommendations include utilising
appropriate (identified) strategies to manage his sexual self-regulation, engaging
with a community-based psychologist to further develop his skills and insight gained
from MISOP, engaging in pro-social activities and commencing employment to
provide income, structure, routine and a sense of agency. It was also recommended
that Mr Akau Ola Laula would benefit from engaging in Practice Guide for
Intervention exercises during supervision interviews focused on dealing with
setbacks, interpersonal relationships, communication skills, conflict resolution, self-
awareness and general skills.
Following his completion of MISOP and subsequent re-assessment, his treating
psychologist assessed Mr Akau Ola Laula to be in the average risk of re-offending
category, this being a more accurate representation of his present risk.
It appears that the assessment of the applicant as being at a moderate risk of re-offending may stem from what was considered to be his superficial response to questions regarding the impact of his offending on the victim.[10]
[10] HB at page 385.
Otherwise, the pre-release report states that the applicant complied with the routine in prison throughout his incarceration and was not considered a management problem. He did not incur any institutional misconduct charges.[11]
[11] Ibid.
Visa cancellation and review
On 19 June 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he does not pass the character test because he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.
On 17 July 2023, the applicant made representations to the Minister regarding the revocation of the cancellation of his visa.
On 11 November 2024, the applicant was released from Long Bay prison on parole and was placed into immigration detention at Villawood IDC, where he remained as at the date of the hearing.
On 13 February 2025, a delegate of the Minister made a decision not to revoke the mandatory cancellation of the applicant’s special category visa.
LEGISLATIVE FRAMEWORK
Section 501 of the Act deals with decisions to cancel a visa on character grounds.
Relevantly to this case, under s 501(3A) the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.
In accordance with s 501CA(3), as soon as practicable after making a decision under s 501(3A), the Minister must give the person whose visa was cancelled written notice setting out the decision together with particulars of specified information that were the reason or part of the reason for making the decision. The Minister must also invite the person whose visa was cancelled to make representations to the Minister about revocation of the decision.
Under s 501CA(4) the Minister may revoke the original decision if representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test (as defined by s 501) or that there is another reason why the original decision should be revoked.
An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba).
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, ‘Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) applies.
For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, in making a decision I must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction. They are:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
A non-exclusive list of other considerations is set out in section 9 of the Direction. They are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
In FHHM v Minister for Immigration,[12] the Full Federal Court considered 8.4 of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ (Derrington J agreeing) referred to remarks made by Colvin J in Suleiman v Minister for Immigration,[13] and stated at [34] that ‘…particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations’.
[12] [2022] FCAFC 19.
[13] [2018] FCA 594 at [23].
ISSUES
As noted above, s 501(3A)(a)(i) of the Act, the Minister must cancel a visa if a person does not pass the character test. A person will not pass the character test if the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more. The applicant was sentenced to an aggregate term of imprisonment of four years. I therefore find that the applicant does not pass the character test.
The remaining issue to be decided is whether there is another reason to revoke the decision cancelling the applicant’s visa, taking into account considerations in the Direction and any other relevant considerations.
CONSIDERATION
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
As required by 8.1(2) of the Direction, I have considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
The applicant’s position is that his offending should be regarded as serious, but not as very serious. The Minister’s position is that the applicant’s offending is very serious.
As noted above, the applicant was convicted of two counts of sexual assault and one count of recording an intimate image of the victim without consent. The latter offence was committed in conjunction with the sexual assault offences. 8.1.1(1)(a)(ii) of the Direction states that crimes of a violent and/or sexual nature against women or children are viewed very seriously by the Australian community, regardless of the sentence imposed. Both the sexual assaults and the recording of an intimate image without consent are crimes of a sexual nature. Based on 8.1.1(1)(a)(ii), I conclude that the offences must be characterised as very serious.
Even though crimes of a sexual nature committed against a woman are considered to be very serious regardless of the sentence imposed, the sentence imposed on the applicant also indicates that the offences are very serious. The aggregate head sentence imposed on the applicant was four years. The maximum penalty for sexual assault is 14 years and the maximum penalty for recording an intimate image without consent is three years. While the sentence for each offence is relatively short compared to the maximum sentence that may be imposed, the imposition of a custodial sentence is a last resort. This is because s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
The impact of the offence on the victim is also relevant to this consideration. In relation to this issue, in the sentencing judgement, the Court referred to the victim impact statement, stating:[14]
[14] HB pages 52-54.
Offences of this kind are recognised by the Courts as having an
inherent degree of violence and impact that can affect the victim for a
considerable period of time if not their entire life. I note, irrespective of the fact
the victim was not a young person - she was in her 30s - that she has been
substantially affected by what occurred on this occasion. This is set out
graphically in her Victim Impact Statement.
As a consequence of the offending against her, she was placed in
shock. She could not live in her apartment anymore. Her children, as a
consequence, had nowhere to live. She was too embarrassed and upset to
return to work, particularly as she was concerned it may be known amongst
her fellow workers that the offences had taken place and she had been the
victim.
Because of that, she said she lost her children. She could not live
alone anymore and was living with a stranger, a friend. She became homeless
eventually. She could not trust men. She could not return to work as she was
ashamed, as she was older than the offender. She received unpaid leave,
payment leave, for some time, but could never return to the position as a result
of the impact of the offending upon her, and subsequently, she has had
difficulty in trusting men or Tongans in relationships. She has developed a fear
her children will be hurt. She sleeps with her shoes on. She does not enjoy
the things she used to do such as going to the gym.
She says the greatest impact upon her has been not only her change in
her personality and behaviour and her fears of the loss of her children but also
the loss of her apartment, the loss her employment and becoming homeless.
She has been undertaking therapy. She wanted to go back to the airport but
was concerned about being embarrassed in front her co-workers. She says
she has eventually managed to get back on her feet, and is prepared to move
on with life.
I conclude from this that the offences had a devastating impact on the victim, which further confirms that the offences are very serious.
My finding that the offences are very serious is made notwithstanding the fact that the offences occurred over a very short period time and there was no trend of increasing seriousness and there has been no repeated offending.
There is no suggestion that the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. Further, the issues raised in 8.1.1(1)(h) and 8.1.1(1)(i) – that is re-offending after a warning and offences committed and offences committed in another country – are not relevant to this case.
Risk to the Australian community – 8.1.2
In accordance with 8.1.2, when assessing the risk that the applicant may pose to the Australian community, I must have regard to, cumulatively:
·The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence about the risk of the applicant re-offending, as well as evidence of rehabilitation achieved by the time of the decision.
Given the nature of the applicant’s offences and the impact they had on the victim of the offences I consider that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal other serious conduct would be devastating.
For the following reasons, I find that the risk that the applicant will commit a further sexual offence is low.
First, I must give weight to time spent in the community since the offences. In this case, the applicant spent more than 18 months in the community while on bail awaiting trial. It is not in dispute that the applicant complied with bail conditions and did not re-offend during that period.
Second, I have placed weight on the sentencing remarks. The Court was confident that the applicant would not reoffend, stating:[15]
I am satisfied this process of being charged, going into custody,
going through the criminal process and attending court has been a significant
specific deterrent to him, and I am satisfied he has good prospects of
rehabilitation and not reoffending.
[15] HB at pages 62-63.
Third, several protective factors reduce the risk of the applicant re-offending. The most important of these factors is the applicant’s relationship with Ms T and with his daughter. However, the applicant also has the support of his large extended family, friends, church leaders and people he has come to know through sport. In this regard, I note the letters of support provided in these proceedings from people including the applicant’s partner, parents, siblings, sisters-in-law, his partner’s mother, a number of friends, his pastor and a teacher in the detention centre, which make up Exhibit A1 and are at HB pages 163 to 199.
The letters are from the following people:
·Alosio Waininau - Pastor
·Augustina Tiare Vila Leauanae - Friend
·Cameron Akau’ola Laula - Brother
·Caroline Akau’ola Laula - Sister
·Colin Langton - Friend
·Halafo'ou Akau’ola Laula - Brother
·Ilaisaane Akau’ola Laula - Sister-in-Law
·Hayden Kovacic - Teacher at Villawood IDC
·John Akau’ola Laula – Brother
·Josese Sadrata - Friend
·Kele Akau’ola Laula - Brother
·Kilisitina Laula and Siupeli Koula Laula - Parents
·Luseane Afu Akau’ola - Sister
·Makerita Toala – Ms T’s mother
·Marg Akau’ola Laula – Brother
·Maryann Akau’ola Laula - Sister
·Paluvulase Fine - Sister-in-Law
·Pricilla Samoa - Friend
·Rowena Tato - Partner
·Seraphine Leha - Friend
·Sitaleki Moala Akau’ola Laula - Sister
·Violet Leota-Thomsen - Friend
Also included in Exhibit A1 is also a report from TT’s childcare centre concerning her progress and achievements. While the majority of these letters do not refer to the applicant’s offending and do little more than offer an opinion as to his good character, I accept that at least the applicant’s family members, his pastor and the Villawood IDC teacher are aware of his offending and its nature. Ms T is certainly aware of this. However, even if there are people in the applicant’s life who are not aware of the details of his offending, I consider that the support of such a large family and community is a significant protective factor reducing the risk of the applicant re-offending and therefore the risk to the Australian community.
Third, I have placed weight on the applicant’s efforts to rehabilitate himself. In relation to this, the applicant underwent treatment sessions with Mr Graham Randall while on bail awaiting trial. While the applicant did not continue treatment sessions with Mr Randall because of his incarceration, while in prison he completed the MISOP course designed for sexual offenders. In oral evidence, the applicant stated his intention to engage in further psychological treatment if he is released from immigration detention. I accept that the applicant is genuinely remorseful for his offending and has developed an understanding of issues concerning consent and the impact of his offending. While I note that the Department of Corrective Services’ pre-release report suggested that the applicant’s risk of re-offending was moderate, apparently based on his superficial response to the impact of his offending on the victim, I consider that the applicant’s oral evidence demonstrated a real appreciation of the impact on the victim, and any perceived superficiality may be a result of the applicant’s unsophisticated communication style.
I have considered whether the risk of harm may be affected by the duration and purpose of the applicant’s intended stay in Australia. It is clear that the applicant intends to remain in Australia indefinitely. While I accept that this increases the risk of harm to the Australian community, it does not elevate the risk beyond a low risk.
Conclusion in relation to protection of the Australian community
I have found that the applicant’s offences were very serious. I accept that should the applicant again engage in similar conduct the resulting harm to an individual and more broadly to the Australian community would be serious.
The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In this regard, I have had regard to 8.1.2(1), which states that ‘[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’.
This is a case in which the Government’s view as expressed in 8.1.2(1) is persuasive.
While the applicant has been assessed as unlikely to re-offend, I consider the nature and seriousness of the applicant’s offending and the likely impact on the victim and on the Australian community if the applicant were to reoffend makes unacceptable any risk that the applicant’s offending may be repeated.
Even though I accept that the risk to the Australian community is low, I conclude that protection of the Australian community weighs strongly against revoking the cancellation of the applicant’s visa.
Family Violence – 8.2
The applicant has not committed a family violence offence. This consideration is neutral.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In doing so, I have had regard to how long the applicant has resided in Australia. In relation to this issue, the applicant did not arrive in Australia as a young child. He arrived as an adult at the age of 19. His offences did not occur until some five years after his arrival. I accept that through his employment, the applicant contributed to the Australian community prior to offending.
I have also had regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant’s immediate family consists of his partner Ms T and their daughter, TT. The applicant is in a committed relationship with Ms T, which has endured throughout his period of incarceration and immigration detention. Ms T is an Australian citizen, as is TT. I have considered the interests of TT below, under the heading of ‘The Best Interests of Minor Children’.
The applicant also has a very large extended family who have an indefinite right to remain in Australia, comprised of his parents and eleven of his surviving thirteen siblings, together with their families. Among these family members are several nephews and nieces with whom the applicant has a close relationship. The interests of these minor children are also considered below.
I have considered the strength, nature and duration of any other ties that the applicant has to the Australian community. While the applicant’s most extensive ties to Australia are through his immediate and extended family, he also has ties through friends, his church community and the sporting community through his involvement in playing rugby union.
I accept that the applicant’s partner, daughter and extended family would be significantly adversely affected if he were to be removed from Australia. In relation to this, I accept in particular the oral evidence given by MAL, who spoke of the important role the applicant plays in the family structure and the evidence of Ms T, who spoke of the impact it would have on her and on her family if the applicant were removed from Australia.
While the letters provided by the applicant from friends, his pastor and other people who are not members of his immediate and extended family do not explicitly address the impact that the applicant’s removal from Australia would have on them, I accept that it would have an adverse impact to some degree.
Overall, I consider that this consideration weighs strongly in favour of revoking the cancellation decision.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, I have considered whether the refusal of the applicant’s visa application is in the best interests of the applicant’s daughter TT.
I note the factors to be considered in respect of this consideration, which are set out in 8.4.(4).
In relation to this, less weight should generally be given where there have been long periods of absence, or limited meaningful contact, including whether an existing Court order restricts contact. In relation to this, there are no Court orders restricting contact between the applicant and TT. While the applicant has been incarcerated and in immigration since TT was less than two months old, Ms T has taken TT to visit the applicant regularly during this period. I accept that while it was more difficult for Ms T to visit the applicant when he was incarcerated in Nowra, she and TT visit the applicant in immigration detention every Saturday and Sunday. They also have frequent contact through video calls. I accept that the applicant has a very positive and loving parental relationship with TT.
Another factor to consider is the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until TT turns 18, and including any Court orders relating to parental access and care arrangements. In relation to this, I am satisfied that given the positive relationship the applicant currently has with TT, he is likely to play a positive parental role in the future, particularly in circumstances where TT is only 2 ½ years old.
I have also considered the impact of the applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on TT. Given that TT was not born at the time of the offences, I do not consider that the applicant’s past conduct has had any adverse effect on her. Further, there is no evidence that TT has experienced any physical or emotional trauma arising from the applicant’s conduct.
In addition, given that the risk of the applicant re-offending is low, I consider that the chance that TT will be negatively affected by the applicant’s future conduct is low. There is also no evidence that TT has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the applicant or has otherwise been abused or neglected by the applicant in any way, whether physically, sexually or mentally.
I have considered the interests of the applicant’s nephews and nieces. The applicant has two minor nieces, aged eleven and twelve, and five minor nephews aged from eight to fourteen. I accept that the applicant plays a positive role in their lives, having looked after them for their parents and having been involved in coaching his nephews. I also accept the applicant’s evidence that he keeps up to date with his nephews’ and nieces’ activities through a family WhatsApp group.
Overall, I find that would be in TT’s best interests for the applicant not to be removed from Australia. It would also be in the best interests of the applicant’s nephews and nieces for the applicant not to be removed from Australia.
However, the weight to be given to this consideration is lessened by several factors.
First, Ms T currently fills the central parental role in TT’s life. As the applicant was incarcerated shortly after TT was born, this has been the situation for almost all of TT’s life.
Second, Ms T’s evidence was that she would move to New Zealand to be with the applicant if it were necessary to do so. Ms T indicated that moving to New Zealand was not something she wanted to do or that she could do immediately, particularly as she is waiting to hear if she has been successful in obtaining a job she has applied for. However, Ms T’s evidence was clearly that she and her daughter would move to New Zealand.
Ms T indicated that moving to New Zealand would be financially difficult and it would be difficult for her to be separated from her family. However, contrary to the submissions made in the request to revoke the cancellation decision, Ms T’s evidence did not indicate that she needs to remain in Australia to care for or financially support her parents or siblings.
Ms T indicates that she is reluctant to move to New Zealand because TT is doing very well in her current childcare setting and she is concerned about the impact of moving her away from that environment. Ms T is also concerned about moving TT away from her extended family, as she is close to her grandparents, aunts, uncles and cousins. The applicant also expressed concern about TT living in New Zealand. He stated that his educational experiences in New Zealand had been negative. He indicated that he was concerned that TT would not obtain as good an education in New Zealand as she would in Australia.
I acknowledge the applicant’s and Ms T’s genuine concerns about TT’s welfare and their concerns about her moving to New Zealand. However, there is no objective evidence before me which leads me to conclude that TT would not adapt to living in New Zealand or that she would not do well in a new childcare centre. Moving house, moving cities and moving countries is something that many young children routinely do with their parents. Further, the fact that the applicant had unhappy experiences at school in New Zealand does not mean that the New Zealand educational system is inferior to that in Australia or that TT would have similar experiences.
I acknowledge that it may be financially difficult for Ms T to move to New Zealand immediately. However, pending such a move, I consider that she and TT would be able to maintain a relationship with the applicant through phone and video calls, which they use at present to communicate with him on days that they don’t visit him in the detention centre.
As for the difficulty of both Ms T and TT being separated from their extended family, this could be alleviated by visits of family members to New Zealand and by visits by Ms T and TT to family members in Australia, when finances permit.
Third, in relation to the applicant’s minor nephews and nieces, they are cared for by their parents. While the applicant plays a significant part in their lives, he does not have a parental role. He could continue to play a role in their lives through phone and video calls and through his nephews and nieces visiting him in New Zealand, finances permitting.
Overall, in circumstances where Ms T and TT will move to New Zealand to be with the applicant, I consider that this consideration weighs only moderately in favour of revoking the decision to cancel the applicant’s visa.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
In accordance with 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed in the Direction, without independently assessing the community’s expectations in the particular case.[16]
[16] See Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2, at [38] and [51] to [52].
The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his offences are very serious.
In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,[17] Horan J stated:
The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] –[67] , [74] –[75] (Charlesworth J), [91]–[93], [103]–[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] –[30] (Moshinsky, O’Bryan and Cheeseman JJ). The “degrees of tolerance” referred to elsewhere in the Direction “are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion” (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and “in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences”: FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.
[17] [2024] FCA 876 at [56].
I find that the Australian community expects that the Australian government should not revoke the decision to cancel the applicant’s visa.
I consider that this factor weighs strongly against revoking the decision to cancel the applicant’s visa.
Legal consequences of the decision – 9.1
A legal consequence of the decision to cancel the applicant’s visa not being revoked is that he will remain in immigration detention pending removal from Australia under s 198 of the Act, which in accordance with s 198(2B) would need to occur as soon as reasonably practicable.
Another legal consequence it that there will be significant restrictions on the applicant’s ability to apply for another visa. An application for any visa other than a protection visa would be subject to s 501E; that is, it could not be made from within the migration zone unless it was for a Bridging Visa R (Class WR) as prescribed by cl 2.12AA of the Migration Regulations1994. The applicant could only apply for such a visa in response to an invitation.
In oral evidence the applicant indicated that he fears that cousins in New Zealand who are involved in a gang would influence him and he could be harmed through an association with them. However, MAL’s evidence was that the family has little to do with these cousins. He indicated that the applicant could avoid contact with them. In any event, the applicant’s evidence concerning his cousins did not suggest that the applicant seeks to invoke non-refoulement obligations.
Further, depending on the visa that may be applied for once the applicant is offshore, the applicant may be subject to indefinite (or permanent) exclusion as he may not be able to meet Special Return Criteria 5001(c) if it applies to the relevant schedule 2 criteria of the visa.
Overall, I consider that the legal consequences of the decision weigh moderately in favour of revoking the decision to cancel the applicant’s visa.
Extent of impediments if removed – 9.2
This consideration refers to impediments the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. I must take into account the applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in New Zealand.
The applicant is 29 years of age and is apparently in good health. He lived in New Zealand until the age of 19. I do not consider that the applicant faces any language or cultural barriers in that country.
The applicant has worked in New Zealand previously. The applicant currently has a job offer in Australia. I accept that this job offer has been made by a friend who is aware of his criminal record. I further accept the applicant’s evidence that his criminal record may make it more difficult for him for him to find a job in New Zealand. However, I note MAL’s evidence that he could use contacts in New Zealand to try to secure work for the applicant. In any event, there is no evidence to suggest that pending obtaining employment the applicant would be unable to obtain the same economic support as any other New Zealand citizen.
The applicant expressed concern about finding psychological support in New Zealand. He stated that he has asked for such support while in immigration detention and if released intends to seek further treatment from Mr Randall. It is to the applicant’s credit that he wishes to obtain further psychological treatment. However, he has not been treated by Mr Randall for more than two years. There is no evidence before me to suggest that the applicant would not be able to arrange for treatment in New Zealand or that he would not be entitled to the same medical assistance as any other New Zealand citizen.
As noted above, the applicant has significant family support in Australia, consisting of his partner, his parents and eleven of his thirteen surviving siblings. In New Zealand, the applicant has a sister and some members of his extended family. MAL’s evidence was that their sister is a single parent who would not be in a position to provide much support to the applicant. However, he indicated that they have a good relationship with their extended family in New Zealand, with whom they keep in contact through social media and visits from time to time. He indicated that they would help the applicant if necessary. MAL stated that he would also support the applicant to the extent that he could, subject to his own financial obligations. He stated that he visits New Zealand for family and other reasons and would visit the applicant if he were removed there.
I accept that the applicant will face impediments if he is removed to New Zealand. This may include initial separation from his partner and child and longer-term separation from his extended family. I further accept that the applicant is likely to face difficulty re-establishing himself in New Zealand after living in Australia for ten years. However, these impediments will be lessened by Ms T and TT moving to New Zealand to be with him (even if that does not occur immediately), by the fact that the applicant has a sister and members of his extended family in New Zealand, by the support his brother is willing to provide him and by the fact that New Zealand is close to Australia and family members will be able to visit him, finances permitting.
Overall, I conclude that this consideration weighs slightly in favour of revocation of the cancellation of the applicant’s visa.
Impact on Australian business interests – 9.3
In relation to this consideration, I must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. I note that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant has worked in Australia in the past and could be expected to work in the future. While he has received a job offer in Australia, there is no evidence that the prospective employer’s business will fail if the applicant is not employed or that the prospective employer could not find another employee. In these circumstances, there is no evidence that a failure to revoke the decision to cancel the applicant’s visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
I conclude that this factor is neutral.
CONCLUSION
I have made the following findings concerning the relevant primary considerations in the Direction:
(a)Protection of the Australian community against criminal and other serious conduct weighs strongly against revoking the cancellation of the visa.
(b)The family violence consideration is neutral.
(c)The strength, nature and duration of ties to Australia weigh strongly in favour of revoking the cancellation of the visa.
(d)The best interests of the minor children weigh moderately in favour of revoking the cancellation of the visa.
(e)The expectations of the Australian community weigh strongly against revoking the cancellation of the visa.
I have made the following findings concerning the other considerations:
(a)The legal consequences of the decision weigh moderately in favour of revoking the cancellation of the visa.
(b)The extent of the impediments if the applicant were removed to New Zealand weigh slightly in favour of revoking the cancellation of the visa.
(c)Australian business interests are neutral.
However, compliance with the Direction is not achieved by focussing upon the weight I have given to the various considerations in isolation. My role in deciding this case is to “bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together”.[18]
[18]CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28].
In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs stated:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[19]
[19] Ibid at [38]
As noted above, 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.
I have found that the protection of the Australian community weighs strongly in favour of not revoking the cancellation of the applicant’s visa. Balanced against this is the primary consideration of the interests of the applicant’s ties to Australia, the best interests of his Australian citizen daughter and, to a lesser extent, those of his nephews and nieces and the other considerations of the legal consequences of the decision and the impediments the applicant will face on removal to New Zealand.
I conclude that this is a case where the protection of the Australian community and the expectations of the Australian community that the applicant’s visa should remain cancelled should be given greater weight than the both the other primary considerations and the other considerations. I conclude that the seriousness of the applicant’s offending and the fact that he committed sexual offences against a woman outweigh the considerations which operate in his favour. I find that this is particularly the case given Ms T’s evidence that she and TT will move to New Zealand to be with the applicant, even though Ms T may not move immediately and will do so reluctantly and with concern about the welfare of TT.
I conclude that there is not another reason to revoke the cancellation of the applicant’s visa. I have therefore affirmed the decision under review.
Date of hearing:
14 and 15 April 2025
Applicant: Self-represented Advocate for the Respondent: Mr S Valliappan Solicitors for the Respondent: Australian Government Solicitor
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