Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1224
•14 April 2021
Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1224 (14 April 2021)
Division:GENERAL DIVISION
File Number: 2020/0909
Re:Tomasi Mailau
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:14 April 2021
Date of written reasons: 10 May 2021
Place:Brisbane
The decision under review is affirmed.
........................[sgd]..............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar and Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Khalil and Minister for Home Affairs [2019] FCAFC 151
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
SCJD and Minister for Home Affairs [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
CONTENTS
Decision
Catchwords
Legislation
Cases
Secondary Materials
CONTENTS
REASONS FOR DECISION
An important procedural aspect of this matter
ISSUES
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Application of factors in Paragraph 13.1.1(1) of the Direction
Failure to experience any deterrent effect or to respect lawful authority
The offending has not abated either in frequency or seriousness
Failure to respect personal and property rights of others
The community’s entitlement to feel safe in public spacesThe risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Remorse and insight
The extent to which the Applicant’s family is a protective factor against his risk of recidivism
The threat of deportation and separation from his family as a protective factor
The likely impact of professional help, and the Applicant’s prior participation in the rehabilitative process
The extent to which the Applicant’s employment prospects and proposed community involvement militate against his risk of re-offending
The Applicant’s Faith
The state of the evidence relating to the Applicant’s past misuse of drugs and alcohol
The evidence of Ms Edwina Cowdery, supervising psychologist called by the ApplicantConclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Concession made by the Respondent
Summary of evidence adduced on behalf of the Applicant
Cross-examination of the Applicant
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(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
Applicant’s age and state of health
Substantial or other language or cultural barriers
Social, medical and/or economic support available to the Applicant in TongaFindings: Other Considerations
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 May 2021
Tomasi Mailau (the “Applicant”) is a 45 year old citizen of Tonga. Movement records indicate he initially arrived in Australia on 12 September 1981.[1] His movement records in and out of Australia thereafter can be tabulated as follows:
[1]R2, 109.
Time in Australia Arrive Depart Days Years Approximate Age On Arrival 12 September 1981 23 December 1998 6311 17yrs 3mo 6yrs 4mo 18 January 1999 16 October 2012 5020 13yrs 9mo 23yrs 8mo 23 October 2012 13 December 2012 51 2mo 37yrs 5mo 18 December 2012 14 April 2021 3039 8yrs 4mo 37yrs 7mo Total 14421 Days 39yrs 6mo
The Applicant was six years old when he first arrived in Australia and has spent a total of 39 years and six months here. In that time, he has spent a total of about 38 days outside of Australia.
The Applicant has a criminal history in Australia which can be tabulated, in terms of court dates and offence dates, as follows:
Offending in Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)1 August 1990 22 May 2018 27yrs 10mo 18 0.65 First offence Last offence Timespan Offence Count Frequency (offences/year) 28 November 1989 8 April 2017 27yrs 4mo 26[2] 0.95 [2]Note: on the face of things, the total number of offences appearing in the Applicant’s criminal history is 27. This is the number arrived at in the Respondent’s Statement of Facts, Issues and Contentions (R2, 12[29]). My calculation of the offence count does not include the entry for 27 May 2009 at the Queanbeyan Local Court referring to the offence of “unlicensed driver/rider (not licensed for 5 yrs) – 1st offence”. The reason I do not include this offence is that in the “result” column, it is recorded as being “dismissed”.
This history involves offending in the realms of (1) burglary/breaking and entering (including aggravated burglary); (2) theft; (3) malicious damage; (4) assaults (including assaults occasioning actual bodily harm); (5) attempted aggravated robbery (in company); (6) driving while licence suspended by law; (7) possess/use a prohibited weapon without authorisation; and (8) making demand with threat to endanger health.
In February 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) mandatorily cancelled the Applicant’s Class BB (subclass 155) Resident Return visa (the “visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“Act”).
This matter comprises a remittal from a previous decision of this Tribunal made on 7 May 2020. Suffice it to say that the Applicant, during the evolution of this matter leading up to the previous hearing, made a request for revocation of the mandatory cancellation decision by making necessary representations to that end. He was then notified of the non-revocation decision made pursuant to s 501CA(4) of the Act and then lodged his application with this Tribunal which conducted the abovementioned previous hearing in April 2020. This, in short compass, is the procedural and jurisdictional history of the matter up to the point of its first ventilation in this Tribunal. To the best of my understanding, neither party is agitating any procedural or jurisdictional argument.
The Tribunal received oral and written evidence from a number of witnesses. The written evidence was compiled into an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked Annexure A.
An important procedural aspect of this matter
The hearing before me was originally listed to proceed by video-link for two hearing days on 18–19 January 2021. The first day was beset by technical difficulties. As a practical matter, 19 January 2021 was the first day of hearing. The record shows that no evidence was received on 18 January 2021 and I allowed the Applicant to re-open his case the following day, 19 January 2021.
The Applicant called a number of witnesses. Some were not available on 19 January, including the Applicant’s expert witness, Ms Edwina Cowdery. To receive the Applicant’s remaining evidence, the Tribunal convened a further hearing day for 5 March 2021.
Given the volume and complexity of the evidence, in the course of the hearing on 5 March 2021, the Applicant requested that closing submissions be in writing. The Respondent agreed to that request. The Tribunal set down a timetable for receiving those closing submissions which ended on 16 April 2021, and issued directions accordingly (a true and correct copy of which is attached hereto and marked Annexure B).
Just three days later, on 8 March 2021, the Honourable Alex Hawke, MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” referred to in paragraph [5], above) signed Ministerial Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA. This new direction was to take effect from 15 April 2021.
I convened an urgent telephone directions hearing on 12 March 2021. During that telephone directions hearing, the parties agreed to revert to oral closing submissions. The parties agreed to make those oral submissions on 9 April 2021. The parties also undertook to file written “evidence reference documents” before the 9 April hearing.[3] The Tribunal undertook to deliver a decision before the commencement of Direction 90.
[3]See A3, and R3, respectively.
The parties filed their evidence reference documents, and the Tribunal heard oral closing submissions on 9 April 2021. The parties intention was to have the matter decided according to Direction 79 by closing their cases with time to spare before the commencement of Direction 90. Presumably, and quite understandably, the parties did not want to incur the cost of re-ventilating an almost four day hearing on the basis of the new Ministerial Direction 90 that took effect on 15 April 2021.
Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”) underscores that there is a distinction between the decision of the Tribunal and its reasons for that decision.[4] The parties agreed to a course whereby I would provide a short-form decision made pursuant to Direction 79 on or before 14 April 2021, and then provide detailed written reasons a reasonable time thereafter.[5] Accordingly, on 14 April 2021, I caused the Tribunal to publish my decision in this matter. A true and correct copy of that short-form decision is attached hereto and marked Annexure C.
[4]Khalil, [41]–[48].
[5]See Transcript, 255, lines 37–47; 256, lines 1–27.
This decision has thus been made in accordance with Direction 79 and the Tribunal now publishes its reasons for that decision.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section 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.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
…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…[7]
[6][2019] FCAFC 151.
[7]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and 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:
·whether the Applicant passes the character test; and
·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 is compelled to find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8]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’s representative made the following concession at the hearing:
Mr Charman:[9] Clearly we accept in this matter that the applicant failed the character test and, therefore, the decision for you, Senior Member, is the balance between the risk that he poses to the Australian community and, obviously, the close ties that he has to Australia, the impact of deporting him on his two children under 18 and the broader family and broader community that he’s closely tied to.[10]
[9]Mr Paul Charman, Barrister-at-law, South Australian Bar Association, legal representative for the Applicant.
[10]Transcript, page 33, lines 42–47.
The Respondent’s contention in its Statement of Facts, Issues and Contentions (“SFIC”) is that:
Given that the Applicant was sentenced to a term of imprisonment of two years and six months for the offences of which he was convicted on 22 May 2018, he has a substantial criminal record for the purposes of subsection 501(7)(c) of the Act. Accordingly, he does not pass the character test under subsection 501(6)(a) of the Act.[11]
[11]R2, 9[10].
The following table derived from the Applicant’s history of criminal offending in Australia discloses the imposition of some 5 years and 9 months of head custodial time.
Court Date Offence Imprisonment (months) Other notes 27-Sep-06 Minor theft (replacement value $2000 or less) 1 9-Jul-08 Attempted Aggravated Robbery (in company) 36 18-Aug-17 Possess / use a prohibited weapon without authorisation 1 Served as full time detention 22-May-18 Make demand with threat to endanger health 30 Served as full time detention 22-May-18 Drive while licence suspended by law 1 Served as full time detention Total term of imprisonment 5 years 9 months[12] [12]Note: this table (and this total) do not include any custodial or pseudo-custodial terms imposed while the Applicant was a juvenile.
Having regard to the cumulative period of custodial terms imposed upon the Applicant, there can be no question that he does not pass the character test pursuant to s 501(6)(a) of the Act. I am therefore satisfied that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the revocation of the mandatory cancellation decision under review.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by 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” or “Direction 79”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[14]
(1)…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.
[13]I decided this matter on 14 April 2021, in accordance with the parties’ wishes (See [11]–[15], above). Because it was decided before 15 April 2021, Direction 90 had not commenced.
[14]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:[15]
…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.
[15][2018] FCA 594 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:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations 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. Further, 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 of the Direction 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) 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
While the Applicant’s SFIC appears to be largely silent about any commentary on the nature and seriousness of the Applicant’s offending, his representative at the hearing did not appear to cavil with the nature and extent of the Applicant’s offending. His representative said the following about the nature of the Applicant’s offending history in this country:
Mr Charman: […] we don’t deny that he has a criminal history. The latest offence, which is really the offence which enlivens the cancellation of his visa, we say is the only offence that so enlivens. Whilst that is a serious offence, his record is not so lengthy nor so serious to make, we say, any risk of reoffending too high given all the other considerations, primary and other considerations, which benefit him. We don’t attempt to mitigate the serious nature of the last offence, or the fact that he has some prior offending
[…]
Mr Charman: Senior Member, I don't intend to deal with the offending itself. The record speaks for itself frankly. There are a couple of points that I would wish to make in relation to that. The assault upon his ex-wife [redacted] is obviously a serious matter. Any assault upon anyone is.
[…]
Mr Charman: Thank you. So I don't want to - what I'm really saying is that there may be, for example, certain offences or criminal records which are so serious that irrespective of all the other considerations the protection of the Australian community would require someone to be deported; murder, those sorts of offences. These are - not trying in any way to downplay the serious nature of his record but I'm simply making the point that in the circumstances of his offending it is not such that of itself it can't be outweighed by the other primary considerations, and we say every other consideration, primary and otherwise, are significantly in his favour such that they would outweigh the concerns (indistinct) of the protection of the Australian community.[16]
[My underlining]
[16]Transcript, 34, lines 3–14; 239, lines 22–25; 240, lines 20–29.
I accept the underlying premise of the Applicant’s contentions about this Primary Consideration A. Collectively, the Primary Considerations B and C, with the Other Considerations in the Direction, are capable of outweighing Primary Consideration A in all but the most extreme cases. I also accept this is not a case where Primary Consideration A, on its own, is determinative. But that does not mean the Applicant necessarily succeeds in this application – I must still weigh all of the Primary and Other Considerations as paragraph 8 of the Direction calls on me to do.
In its SFIC, the Respondent makes the following contention (after application of the relevant factors in paragraph 13.1.1(1) of the Direction: “the Respondent contends that the Tribunal can be satisfied that the nature and seriousness of the Applicant's offending should be viewed very seriously”.[17]
[17]R1, 15[40].
In terms of oral submissions, the Respondent’s representative,[18] noted the following:
Ms Letcher-Boldt: The applicant has an extensive criminal history that involves numerous violent offences and the evidence indicates that the victims of his offending has included a woman. Despite previously receiving multiple non-custodial sentences and terms of imprisonment the applicant’s criminal history indicates that these have not deterred the applicant from reoffending.
[…]
We also note that the direction specifically provides that violent offences are viewed very seriously and accordingly the respondent contends that the applicant's repeated violent offending should be categorised as very serious offending for the purposes of the direction.
[…]
In summary, based on all the evidence before the tribunal and specifically we would say the applicant's violent and very serious offending, the fact that the victims of his offending have included women, his expansive and repeated history of offending, the fact that he has not to date completed any rehabilitative programs or courses since his most recent offending and the risk of harm, that we say that the tribunal can be satisfied the applicant continues to pose to the Australian community that the tribunal should find that there is not another reason to revoke the mandatory cancellation of the applicant's visa by exercising the discretion in section 501CA(4) of the Migration Act.[19]
Application of factors in Paragraph 13.1.1(1) of the Direction
[18]Ms Emma Letcher-Boldt, Lawyer, Clayton Utz, legal representative for the Respondent.
[19]Transcript, 52, lines 20–25; 248, lines 13–16; 254, lines 13–22.
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. Those factors comprise:
(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)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(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)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
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. An initial observation (and finding) is that none of the Applicant’s offending history involves the commission of sexual crimes. That said, the material is replete with multiple examples of violent offending by this Applicant.
On 22 May 2018 in Australian Capital Territory (“ACT”) Supreme Court, the Applicant was convicted and sentenced on one count of “Make demand with threat to endanger health”.[20] For this offending, the Applicant was sentenced to a custodial term of “2 years 6 months imprisonment to be served as full time detention.” The conduct is at once extraordinary and patently violent. For all intents and purposes, it involved the Applicant acting in the manner of an “enforcer” seeking to unilaterally impose his will – via unlawful means – against third parties.
[20]R1, 29.
The circumstances of this offence involved him entering a café located in Griffith in the ACT. Upon entering the café (on 8 April 2017), he proceeded to a table at the rear of the establishment and confronted the victim. According to the sentencing remarks of Burns J, the victim was a random person who was not known to the Applicant. The Applicant commenced speaking with the victim, telling him that he owed a lot of people a lot of money which he (the Applicant) nominated to be $50,000. During the exchange with the victim, the Applicant placed and maintained one of his hands inside a small light-coloured tartan satchel.
Contemporaneous with making the demand upon the victim to pay $50,000, the Applicant introduced two threats. First, he told the victim that if the money was not paid, “I’ll kneecap you now”.[21] Second, he caused one of his hands to manipulate the satchel in such a way such as to expose the butt of a firearm. The exposure of this firearm can be viewed in no other way than as obviously threatening conduct because it was accompanied with the words “do you want me to get this out?”.[22] According to the sentencing remarks, when confronted with these dual-threats, the victim agreed to pay the money demanded by the Applicant. Upon obtaining this agreement, the Applicant exited the café and departed the vicinity in his vehicle.[23]
[21]Exhibit R1, 30.
[22]Ibid.
[23]R1, 29–31; See also R1, 592–597. The material contains another version of the relevant Statement of Facts for this offence (See R1, 728–733) but the more recent version appears at R1, 592–597.
On 9 July 2008 in the ACT Supreme Court, the Applicant was convicted and sentenced of one count of “Attempted Agg. Robbery (In Company)”.[24] For this offending, the Applicant was sentenced to a custodial term of three years but was released forthwith upon entering into a good behaviour order having a duration of three years.
[24]R1, 27. See also R1, 600 which provides the offence date and charge number which can be cross-referenced with the police records in the material.
The factual circumstances of this offending are that on the afternoon of 7 April 2007,[25] in company with a co-offender, the Applicant approached a male victim and took hold of his left arm with the accompanying demand of “show us your wallet.” Either the Applicant or his co-offender told the victim “don’t make a sound bro, I’ll have ya bro, show us your wallet, I want the money out of it”. Either the Applicant or his co-offender then reached into the pockets of the victim and physically removed the victim’s wallet. It should be noted that either the Applicant or his co-offender was forcibly holding the victim while the victim’s wallet was removed.
[25]R1, 479.
Upon discovering the Applicant did not have cash in his wallet, one of the offenders noted that it nevertheless contained a credit card. One of the offenders noted “has he got a card. Let’s get his PIN.” According to the police narrative, the offenders then marched the victim to a nearby automated teller machine (ATM). Upon arriving at the ATM, the victim was told “you’ll get the money out for us and there’ll be no trouble.” The victim apparently refused to comply with this threatening direction and attempted to dial the triple zero emergency service on his mobile telephone. Upon discovering this, one of the two offenders forcibly removed the mobile telephone from the hands of the victim. The mobile phone was retained and never returned to the victim.
A further demand was then made on the victim. After one of the two offenders placed the victim’s credit card back into the ATM, the following further threatening demand was made upon him: “Enter your pin or we’ll have ya”. The offenders were holding onto the victim’s arms “extremely hard and he [the victim] could not escape from them”. Due to fears for his safety, the victim purported to enter a PIN number which ultimately proved to be incorrect but, nevertheless, one of the two offenders attempted to enter the figure “$1000” as a withdrawal. The transaction was not successful because the PIN number that was entered was incorrect.
This drew a further threatening response from the offenders whereupon the Applicant was told “[y]ou put the wrong PIN number in […] [p]ut the right PIN in or I’ll have ya”. The police narrative then records the following:
[The Victim] then felt something sticking into his left handside ribcage, the side that the male in the black top with the red writing was holding him on. [The Victim] believed this was a knife.
The second larger male then re entered the card into the machine and said “Do the right PIN now or he’ll have ya bro”
[The Victim] under duress entered the correct PIN and when he had done this the male in the black top with the red writing on it took [the Victim]’s right hand away from the keypad with his left hand and then held both arms locked to [the victim’s] body.
The second larger male then said “What account?”
[The Victim] said “Savings”
[The Victim] saw the second larger male enter $1000 on the keypad of the ATM again.
The transaction was declined and the larger male said “Fuck it he’s got no money”
The first male in the black top with the red writing on it said ‘Yeah Fuck it all right”[26]
[26]R1, 480–481.
There are further offences in the Applicant’s criminal history which may have involved violence. The material contains a letter from the ACT Magistrates Court dated 20 March 2020. This letter responds to a summons to that court filed by the Respondent for the purposes of the previous hearing. The letter, cross-referenced with the Applicant’s criminal history, shows certain additional criminal files were not produced pursuant to the summons. The reason provided is stated to be thus: “[t]he following criminal files are currently archived off-site and could not [sic] produced by 23 March 2020”.[27] Due to the absence of the actual material detailing the circumstances of two of the offences, it suffices to say that two of the offences in the list of criminal files that could not be produced by the ACT Magistrates Court are, by their very nature, redolent of at least some element of violent offending. They comprise:
[27]R1, 652–653.
Date
Charge No.
Offence
29 January 1993
CH1993/3232
Assault Occasioning Actual Bodily Harm
5 November 1998
VA19982686
Aggravated Burglary Intent Assault
A similar violent offence appears in the Applicant’s criminal history dating from 25 October 2004. On that day, the Applicant was convicted at the Queanbeyan Local Court of one count of “assault occasioning actual bodily harm” for which he was fined the sum of $1000 and ordered to pay court costs in the sum of $63. While the offence is referred to in the criminal history, the relevant records of the Queanbeyan Local Court were not summonsed for either this hearing or the previous hearing.
Having regard to the above convictions (and offences otherwise described in the Applicant’s criminal history), it is not possible for him to cavil with a finding that his offending has involved significant levels of violence. These offences must, pursuant to this sub-paragraph (a), be viewed very seriously. This sub-paragraph (a) strongly militates in favour of a finding that the totality of this Applicant’s offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The material discloses at least two convictions for offences of a violent nature against women.
On 12 November 2008, at the ACT Magistrates Court, the Applicant was convicted of one count of common assault.[28] He was ordered to perform 240 hours of community service within 12 months of the date of the conviction. Another component of the sentence involved his release on a good behaviour order for a period of 24 months. A further component of the sentence involved a requirement that during a period of 12 months (after the sentencing date) or such lesser period as may be deemed appropriate, the Applicant submit himself to the supervision of the appropriate rehabilitative officer and to obey all reasonable directions and other core conditions that may be imposed upon him such as:
·attending such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to family violence, self-change and alcohol abuse; and
·supply samples of breath, blood or urine for alcohol or drug testing if required by a corrections officer.
[28]R1, 26.
Particulars of the offence relate to the Applicant’s previous domestic relationship with his ex-wife. The police narrative records that he and she divorced “under acrimonious circumstances in 2006”.[29] The offending episode occurred on 30 June 2008. The Applicant’s ex-wife was at her home in suburban Canberra, ACT. Some of their children (at the time) were also at home and were asleep in their respective bedrooms. The defendant presented at the house and commenced loudly banging on the back door. When answering the banging, the Applicant’s ex-wife noted that the Applicant was unsteady on his feet. She also thought he was intoxicated.
[29]R1, 503.
The Applicant proceeded to vomit in the back garden of the subject property and he sought to attract the attention of his ex-wife, at which time a brief conversation ensued. The main theme of the conversation appeared to be the Applicant’s intention to resume the domestic relationship with her. He must not have received the response he was seeking because, at that stage, the police narrative records that he “[…] became quite aggressive and started swearing.” He refused her numerous requests to leave the property. When he refused to leave, his ex-wife told the Applicant of her intention to call the police. He responded aggressively with “[i]f you call the Police I will tear this place apart, I will tear your family apart”.[30]
[30]Ibid, 504.
At least one[31] of the Applicant’s sisters eventually arrived at the subject property in an effort to defuse the situation. This did not apparently meet with the Applicant’s approval whereupon he went back inside the subject dwelling and, as the police narrative records:
[…] walked up to [the ex-wife] who was at that time sitting at the dining room table and asked her why she called his sister. Then, [the Applicant] with an open left hand slapped [the ex-wife] on the right side of her face.
[31]Note: in his oral evidence, the Applicant indicated that “maybe one of [his] sisters” was in attendance but that he did not remember which one (See Transcript, 55, lines 28–34).
When the ex-wife formed an intention to call the police by going into the kitchen to pick up a telephone for that purpose, the Applicant told her “[y]eah, you call the police and I will kill you and your sister.” He further said to her “[…] you better get out of Canberra, if you try and take my kids I’ll hunt you down and kill you.” The Applicant’s conduct brought the children into its orbit as the police narrative records:
[The Applicant] tried to wake up his children and was successful in getting his seven year old son [Child J], before he was able to get more of his children, [the Applicant’s] sisters were able to convince him to leave.
The police eventually imposed themselves onto the situation and duly cautioned, arrested, and conveyed the Applicant to the local watch house. In terms of the context of the offending conduct and the impression it made on those within its vicinity, it is pertinent to quote a short portion of the police narrative:
At no time did [the ex-wife] consent to the [Applicant] to assault her. Whilst [the ex-wife] did not have any visible injuries, she was heavily traumatised and Immediately [sic] requested assistance from DVCS [Domestic Violence Crisis Centre].
In relation to the threats to kill against the Victims, [the ex-wife] believed the [Applicant] would be capable of carrying out the threats as she knew he has previously possessed firearms and has a propensity for violence.
The [Applicant’s] criminal history, reputation for violence, size being approximately 160 kgs, 6 feet 2 Inches tall and aggressive demeanour all significantly contributed to the fears held by the victims that the [Applicant’s] threats to kill them would be carried out.
During evidence in chief, the Applicant was referred to his assault on his ex-wife. The following transpired during that oral evidence:
Mr Charman: Now, talking about [your ex-wife] there was an incident where you assaulted [her] wasn’t there?
Applicant: Yes.
Mr Charman: All right?
Applicant: Not my proudest moment.
Mr Charman: Sorry?
Applicant: Not my proudest moment.
Mr Charman: No. Is that something that you regret?
Applicant: Yes. I regret that deeply. She’s a good woman.[32]
[32]Transcript, 42, lines 15–23.
During cross-examination, the Applicant said that he recalled the incident, but could not recall any other details of the offence including the identities of any other persons present during the offending. The following transpired during the cross-examination:
Ms Letcher-Boldt: But you do recall the incident in 2008 in which you were convicted of common assault and that’s the incident involving your ex-wife, you recall that, don’t you?
Applicant: Yes.
Ms Letcher-Boldt: Okay. And that incident involved you striking your ex-wife across the face, do you recall that?
Applicant: Yes.
Ms Letcher-Boldt: Do you recall threatening to kill your ex-wife?
Applicant: I can’t remember that.
Ms Letcher-Boldt: Do you agree that that was a violent offence?
Applicant: Yes, I agree it was a violent offence. And like I said, I’m very remorseful and very regretful for what happened. If I could take it back I would take all of it back.
Ms Letcher-Boldt: Do you recall any other details about that offence where you were or how that came to be?
Applicant: No, I can’t.
Ms Letcher-Boldt: Okay. Do you recall whether two of your sisters were there at the time that the offence occurred?
Applicant: Yes, but maybe one of my sisters.
Ms Letcher-Boldt: Do you remember which one?
Applicant: No, I can’t. I don’t remember.[33]
[33]Transcript, 55, lines 15–34.
The Applicant’s ex-wife also gave evidence at the hearing. She did not deny the occurrence of the incident but otherwise purported to not be able to recall the relevant details of the Applicant’s conduct. While I have a certain level of regard to the wife’s evidence,[34] I prefer the evidence of the police which is the most independent and authoritative outline and description of the incident. Critically, the police narrative is surely the most reliable evidence about the context in which the Applicant’s offending was committed and its threatening impression made on those drawn into its orbit.
[34]See Transcript, 151, lines 15–41; See also ex-wife’s statement at R1, 427.
On 8 March 2017 at the Downing Centre Local Court, the Applicant was convicted and sentenced on one count of “stalk/intimidate intend fear physical etc harm (domestic)”.[35] For this offending he was convicted and placed on a bond for a period of 18 months. The bond provided that he was to be of good behaviour “which means you do not commit any offences at all”.[36] The Applicant was further told “if you do, you will be brought back to Court and resentenced with this matter”.[37]
[35]R1, 26.
[36]R1, 381.
[37]Ibid.
Particulars of the offending appear in a detailed police facts sheet.[38] It records that the Applicant and the victim were in a domestic relationship for five years from 2009–2014.
[38]R1, 614.
On 15 February 2017, the victim was having a text message discussion with the Applicant’s female cousin. During the course of that discussion, the female cousin told the victim that she had received certain text messages from the Applicant. The facts sheet records the following about the subject message:
The first message which was sent on February 14th 2017 says, “Hey [nickname of female cousin] if you talk to [victim] tell she is a dead bitch [sic] when I catch [sic] sorry for searing [sic] sis”. After the witness replied the following day, the accused replied “Na all good I just going [sic] to smash her face in she is a big user anyways sorry to get u involved but if you talk to her let her [sic] know I be coming for her and her family I had enough of her.”[39]
[39]Ibid, 615.
On 16 February 2017, the police narrative records that the victim attended her local police station to report the matter. It further records that “[t]he victim is afraid that the accused will be waiting for her when she leaves her apartment. The victim is also afraid that he will try and hurt her and try to hurt members of her family”.[40] The police narrative goes on to record that:
The victim is aware that the accused has a history of violence, a lot of which she has witnessed or experienced first hand. The victim is worried and genuinely afraid that the accused will attempt to carry out the threats he has made in the text messages.[41]
[40]Ibid.
[41]Ibid.
On 27 February 2017, the police were conducting regular patrols at which time they directed the Applicant to pull over in his car and submit to a roadside breath test. While the breath test returned a negative result, the Applicant’s name must have come to the attention of the police as part of their regular screening process conducted on his driver license. The police must have then been made aware of the information provided to them by the victim on 16 February 2017. They then proceeded to arrest the Applicant for the text-message offending incident.[42]
[42]R1, 615.
During cross-examination, much as occurred when he was cross-examined about the violent offence against his ex-wife, the Applicant recalled the incident but purported not to recall particular circumstances of the offence such as the sending of the relevant text message and its wording. The following transpired during his cross-examination:
Ms Letcher-Boldt: And do you recall in 2017 being convicted of stalking and intimidating a woman?
Applicant: Yes.
Ms Letcher-Boldt: You had previously been in a relationship with that victim, is that correct?
Applicant: Yes.
Ms Letcher-Boldt: But this was not the same person as your ex-wife, this was a different woman?
Applicant: Yes.
Ms Letcher-Boldt: Do you recall sending text messages to a friend of the victim stating that you were going to smash the victim’s face?
Applicant: I don’t recall that.
Ms Letcher-Boldt: Do you recall making threats towards not only the woman but also her family?
Applicant: No, I don’t.
Ms Letcher-Boldt: Do you recall receiving an AVO for that particular offence?
Applicant: Yes, I do recall that.
Ms Letcher-Boldt: And do you recall receiving an 18 month good behaviour bond for that same offence?
Applicant: Yes.[43]
[43]Transcript, 55, lines 36–46; 56, lines 1–8.
The two above-described convictions for common assault and stalking are, beyond question, crimes of a violent nature committed against women. As such, the Direction (per this sub-paragraph (b)) stipulates that such crimes must be viewed very seriously, regardless of the sentence imposed. The Applicant’s offending in this realm is surely supportive of an ultimate finding that the totality of his offending has been of a very serious nature.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” I have carefully looked through the totality of the material before the Tribunal for any evidence of the commission of offending of this type. While the material contains a reference to the Applicant taking umbrage at receiving a parking ticket and telling the relevant attendant “why did you give a ticket […] I should knock you out”,[44] the police did not consider that an offence was made out and did not take this conduct any further.[45] Thus, this sub-paragraph (c) is not relevant to determination of the instant application.
[44]R1, 487.
[45]R1, 487.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort[46] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[47]
[46]See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[47]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
The following table summarises the custodial terms imposed for the Applicant’s offending in Australia:
Court Date Offence Imprisonment (months) Other notes 27-Sep-06 Minor theft (replacement value $2000 or less) 1 9-Jul-08 Attempted Aggravated Robbery (in company) 36 18-Aug-17 Possess / use a prohibited weapon without authorisation 1 Served as full time detention 22-May-18 Make demand with threat to endanger health 30 Served as full time detention 22-May-18 Drive while licence suspended by law 1 Served as full time detention Total term of imprisonment 5 years and 9 months[48] [48]Note: this table (and this total) do not include any custodial or pseudo-custodial terms imposed while the Applicant was a juvenile.
The Applicant is nearly 46 years of age. His offending has been such as to attract the best part of six years of head custodial terms at various sentencing episodes. While the totality of custodial terms does not comprise a very significant portion of his life in this country thus far, it is nevertheless indicative of the serious nature of the offences for which that custodial time has been imposed. Perhaps fortunately for the Applicant, it is clear that the totality of court files / records from all of the courts (be they in the ACT or New South Wales) are not before the Tribunal.[49] Nor were they before the Tribunal during the previous hearing.
[49]See [49], above.
It must also be remembered that the Applicant’s offending in this country commenced in 1990 (as a juvenile) and ran until May 2018. His first custodial term – for one month – was imposed in September 2006. There followed a period in actual custody from March 2008–July 2008.[50] The next custodial term was imposed in August 2017 and from then onwards, custodial terms predominated the way in sentencing judicial officers dealt with his offending.
[50]See R1, 27: On 9 July 2008, the Applicant was sentenced to a custodial term of 3 years imprisonment, but released forthwith. However, this does not mean he did not spend any time in actual custody. The sentencing record discloses that the commencement of the sentence was backdated to 2 March 2008 which is indicative of the Applicant going into actual custody on 2 March 2008 and being dealt with on 9 July 2008. Hence, the period of March–July 2008 being referred to as a period “in actual custody”.
Therefore, viewed in their totality, I am of the view that the sentences imposed by the courts for the crimes of this Applicant, while not of an extraordinarily long period relative to his age and his period of time in this country, nevertheless support a finding that the totality of his offending in this country has been of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction involves an examination of the frequency of a non-citizen’s offending and whether there is any detectable trend of increasing seriousness. To my mind, it is self-evident that the task involving the allocation of any weight to this sub-paragraph (e) largely parallels the exercise compelled by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Before undertaking my own analysis, it is worth recording in full what the Applicant said in cross-examination when asked whether there was a trend in the seriousness of his offending:
Ms Letcher-Boldt: Despite having some difficulties remembering your offending history, we established earlier that your first offence or your first conviction in Australia was for theft. Do you agree that since that time your offending has increased in seriousness?
Applicant: Yes. If that’s what it says there.
Ms Letcher-Boldt: No, it’s not so much what it says. I guess what I’m asking you is - the first offence for which you were convicted was theft and I don’t know the complete details of that particular offence but that was the first offence for which you were convicted and the most recent offence for which you were convicted involved making threats to a victim that you would use a weapon if they did not pay you $50,000 and I guess I’m trying to understand whether you see an increase in the seriousness of that offending over time?
Applicant: Yes. Yes, you’re right.[51]
[51]Transcript, 61, lines 29–41.
The following table deals with the frequency of the Applicant’s offending in Australia. As will be noted, it discloses the commission of almost one offence per year across the entire offending history. In terms of court dates to deal with his offending, the Applicant has found himself before lawful authority on at least 18 separate occasions.
Offending in Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)1 August 1990 22 May 2018 27yrs 10mo 18 0.65 First offence Last offence Timespan Offence Count Frequency (offences/year) 28 November 1989 8 April 2017 27yrs 4mo 26[52] 0.95 [52]Note: counted individually, the total number of offences appearing in the Applicant’s criminal history is 27. This is the number arrived at in the Respondent’s Statement of Facts, Issues and Contentions (R2, 12[29]). My calculation of the offence count does not include the entry for 27 May 2009 at the Queanbeyan Local Court referring to the offence of “unlicensed driver/rider (not licensed for 5 yrs) – 1st offence”. The reason I do not include this offence is that in the “result” column, it is recorded as being “dismissed”.
To my mind, the numbers, effectively, “tell the story”. The Applicant has committed nearly one offence per year. He has been dealt with on at least 18 separate occasions for that offending. Accordingly, there can be no other finding than that the totality of his offending has been committed on a frequent basis.
The next component of this sub-paragraph (e) refers to any detectable increasing trend in the seriousness of the Applicant’s offending. Returning again to his offending history, what can be said is this: it is not an offending history that starts with relatively minor regulatory or misdemeanour-type offending and then graduates into more severe offending. This is simply not the nature of his criminal history – the seriousness of his offending begins at a mid to high level and increases or remains consistent with that starting point. Even as a juvenile, the preparedness to wantonly interfere with someone else’s property in the form of offences relating to theft, burglary – intent to steal, robbery from person and burglary simpliciter is clearly redolent from the Applicant’s offending pattern.
This type of offending remained a constant theme throughout the offending history but graduated in severity to aggravated forms of such offences. There is, for example, in July 2008, a conviction for attempted aggravated robbery in company. This was the offence involving the appalling conduct comprising the manhandling and threatening of a victim to forcibly induce him to withdraw money from his account at a nearby ATM. Similarly, the offending does not have boundaries with regard to the personal safety of others. As was also noted above, his propensity to feel inclined to help himself to the property of others crossed into the very serious realm of conduct giving rise to a conviction for “make demand with threat to endanger health” relating to the café incident. Thus, taking account of this modality of his offending in isolation, it can be fairly found that it has graduated in seriousness such as to endanger the personal safety of others, and to involve more significant amounts of money.
Likewise, the offending has evolved in a way such as to disrespect any boundaries with regard to gender. As was noted above, there are at least two convictions for quite serious offences against females. His physical attack on his ex-wife together with the surrounding circumstances of that offending incident that drew the children into its orbit is very serious. Similarly, the very threatening terms of the text message which culminated in his conviction for “stalk/intimidate intend fear physical etc harm (domestic)” in 2017 can only be read in one way. It quite understandably caused the victim to experience considerable fear and alarm for her own safety and that of her family.
This sub-paragraph (e) can only result in a finding that both the frequency of the offending and its increasing seriousness must jointly militate in favour of a finding that the totality of the Applicant’s offending has been of a very serious nature.
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. Several cumulative effects can be gleaned from the Applicant’s offending history.
Failure to experience any deterrent effect or to respect lawful authority
A first cumulative effect arising from the Applicant’s repeated offending can be seen in his failure to experience any deterrent effect from sentences or other orders previously imposed on him. He has not, for example, understood the lawful authority represented by a grant of bail or other order allowing him to go at large in the community pending or conditional upon other matters. Despite such previous sentences and/or orders, he has repeatedly yielded to an impulse to continue his offending. In sentencing the Applicant for the incident at the Griffith café, the learned sentencing judge noted that this offence was committed while (1) the Applicant’s driver license had been suspended due to a failure to pay parking infringement fines (yet driving a vehicle away from the café was part of this offence); and (2) the Applicant was only in the community on a “conditional liberty” basis at the time of commission of this offence.[53] To quote the learned sentencing judge:
In assessing the objective seriousness of this offence, I take into account the fact that you were on conditional liberty at that time. In that regard, I note that on 8 March 2017 at the Downing Centre in New South Wales, you were sentenced for offences of stalking and also using an offensive carriage service to threaten serious harm. On the first matter of stalking, you were placed on a bond to be of good behaviour for a period of 18 months. On the second offence, you were further placed on a recognizance to be of good behaviour for a period of 18 months. You were subject to those orders at the time that you committed the present offence.[54]
[53]R1, 30.
[54]R1, 30.
The nature of this offending by the Applicant caused the learned sentencing judge to feel he had no option other than to impose a custodial term of “immediate full-time term of imprisonment”:
The present offence can best be characterised as an attempt by you to obtain $50,000 by intimidation and by the threatened use of a weapon. In my opinion, nothing less than an immediate full-time term of imprisonment will be adequate to meet the requirements of sentencing. In that regard, your criminal history speaks of a need for specific deterrence.[55]
[55]R1, 31.
A further example of the Applicant’s failure to respect lawful authority can be found in his not having any modicum of respect for the rules governing the use and operation of motor vehicles on Australian carriageways. There are four convictions for driving while unlicensed, or while his license was suspended, in the Applicant’s criminal history.
The offending has not abated either in frequency or seriousness
A further dimension of the Applicant’s failure to experience any deterrent effect can be seen in the nature and trajectory of his offending. I have previously found that his offending has been frequent and that it reflects an inherent increase in seriousness as it has evolved. There are two relevant examples from the offending history. When the Applicant committed the offence of attempted aggravated robbery (in company) for which he was convicted in July 2008, he had, by that time, found himself before lawful authority for sentencing for other offences on at least 11 previous occasions. He took nothing from these earlier 11 sentencing episodes dealing with his offending and sought to impose his own will on an innocent member of the public going about his business by forcing that person to withdraw money from an ATM machine.
The second example refers to his very serious conduct in the café which offence was committed in 2017 and for which he was sentenced in May 2018. By the time he committed this offence, he had found himself before lawful authority on at least 17 previous occasions. He took nothing by way of a deterrent effect from those previous 17 sentencing episodes and proceeded to commit a very serious offence involving a demand made upon a member of the public for a very large sum of money and the making of a direct threat to the health and wellbeing of the victim.
Failure to respect personal and property rights of others
A further cumulative effect of his offending can be seen in his failure to respect the personal and property rights of others. There are at least 12 convictions for offences relating to property committed in the realm of (1) theft, (2) burglary, (3) robbery, (4) malicious damage, and (5) minor theft. In terms of a failure to respect the personal rights of others, there are at least seven convictions committed in the realms of (1) assaults occasioning actual bodily harm, (2) aggravated burglary, intent assault, (3) attempted aggravated robbery, (4) common assault, (5) stalk/intimidate, and (6) make demand with threat to endanger health.
The community’s entitlement to feel safe in public spaces
To my mind, a further cumulative effect of the Applicant’s repeated offending can be gleaned from its adverse impact on the community’s entitlement to feel safe in public spaces when they are otherwise going about their business. During cross-examination, the Applicant accepted the community should have this entitlement:
Ms Letcher-Boldt: Do you think that people in the Australian community should be able to expect that other people in the community will obey Australia’s laws?
Applicant: Yes.
Ms Letcher-Boldt: But would you agree that instead of obeying Australia’s laws, you have committed a number of violent and serious offenses?
Applicant: Yes, I agree. Like I said to you, I’m very, very, very apologetic about it, and very remorse [sic].
Ms Letcher-Boldt: And you would agree, would you, that the Australian community has a right to feel safe?
Applicant: Yes, I do.
Ms Letcher-Boldt: Given your extensive criminal history, do you think that the Australian community can expect to feel safe if you were released back into the community?
Applicant: Yes, I do believe so.[56]
[56]Transcript, 67, lines 14–26.
If the Applicant now believes the Australian community should be able to expect other people in the community will obey the law, one wonders why the Applicant did not form this view earlier. He had been committing offences for something like seven–eight years when he committed the attempted aggravated robbery offence involving the victim and the ATM. More recently, he had been committing offences for something like 16–17 years when he committed the “make demand with threat to endanger health” offence against the victim at the café.
The Australian community should not be compelled to tolerate repeated conduct involving publicly made threats to random members of that community in cafes and other places of public gathering. Likewise, members of the Australian community are entitled to feel safe when conducting their financial affairs at, for example, an ATM. Further, Australian women should not be subject to death threats (like those in the text messages the Applicant sent to his former girlfriend) or conduct like that which the Applicant subjected his ex-wife to in or about 2008. Such random conduct on innocent members of the Australian community must be found to be unacceptable and, ultimately, very serious.
I am therefore of the view that the abovementioned cumulative effects arising from the Applicant’s repeated offending attract application of this subparagraph (f) in favour of a finding that the totality of his offending has been of at least a very serious, more likely extremely serious, nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material contains at least two examples involving the Applicant’s incorrect completion of incoming passenger cards when re-entering Australia. Both of them date from 2012. Each of the cards ask the same question: “do you have any criminal conviction/s". On each, the Applicant answered with: "No".[57]
[57]R1, 278–279.
The cards are respectively dated 23 October 2012 and 18 December 2012. By that time, the Applicant had found himself before lawful authority for sentencing on at least 15 separate occasions dealing with his commission of some 21 offences. It borders on the incredible for the Applicant to now suggest he was not aware of his offending history in this country at the time he completed both incoming passenger cards.
Ms Letcher-Boldt: On page 278 and 279 there’s lots of different boxes you can tick and on the left-hand side there is a question that says towards the bottom:
“Do you have any criminal convictions?”
Ms Letcher-Boldt: And the tick is no. Do you recall completing this form?
Applicant: Yes, I must have not looked at it and read it, like I probably couldn’t understand it properly.
Ms Letcher-Boldt: Did anyone assist you to complete this form?
Applicant: No.
Ms Letcher-Boldt: But you agree that you had a number of criminal convictions in 2012, is that right?
Applicant: Yes. Yes.
Ms Letcher-Boldt: But you were saying that you didn’t declare them because you didn’t quite understand the form, is that your evidence?
Applicant: (No audible answer).[58]
[58]Transcript, 57, lines 6–20.
I accept there had been some evidence (both oral and written) adduced about the Applicant’s apparent lack of literacy. For present purposes, what can be said is that the Applicant has erroneously completed two passenger cards in 2012 in circumstances where he was fully aware of the nature and extent of his previous offending in this country. In the final analysis, the reality is that the Applicant has twice re-entered Australia by incorrectly answering two relevant questions about his past criminal convictions in this country.
I will allocate a moderate level of weight to this sub-paragraph (g) in favour of a finding that the totality of his unlawful conduct to date has been very serious.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to find any such communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of the instant application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. I have carefully reviewed the material and cannot locate any records relating to the Applicant’s time in immigration detention. There is nothing in the material suggestive of facts or circumstances pointing to the Applicant’s commission of a crime “while in immigration detention”. This sub-paragraph (i) is not relevant to determination of the instant application.
As I have alluded to earlier, a proportion of the Applicant’s unlawful conduct in this country is not immediately captured by any of the sub-paragraphs to sub-paragraph 13.1.1(1) of the Direction. Be that as it may, the chapeau to the factors at 13.1.1(1) of the Direction allows a decision maker to take into account such “other conduct”. The chapeau reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
To my mind, the following conduct does comprise such “other conduct” to which regard can be had in the assessment of the nature of this Applicant’s offending:[59]
[59]R1, 555.
·the criminal history discloses a conviction on 18 August 2017 for “possess/use a prohibited weapon without authorisation”. On 21 September 2015, while executing a lawful search, the police narrative states:
Police located and seized a pair of wooden handled nunchakus in the boot of [remaining text unclear]
About 4:09pm, Police commenced a taped record of interview relating to a section 188, Drugs of Dependence Act 1989 emergency search with the defendant. The defendant stated the following:
- the nunchakus were his;
- there were left there from a dress up party a while ago; and
- he didn't know it was an offence to possess nunchakus.
Nunchakus are a prohibited weapon as defined in Schedule l of the Prohibited Weapons Act 1996;[60]
[60]See R1, 556, 703.
·while in criminal custody, the Applicant did on 1 February 2018, contravened a direction given by a corrections officer. He was counselled and received an officer’s warning;[61]
[61]Ibid, 265.
·on 2 May 2003, the Applicant was convicted and fined a sum of $500 for “possess prohibited substance”. Police conducted a search of the car the Applicant was driving. They found a plastic bag inside a black sports bag in the boot of the car. The plastic bag contained “green vegetable matter” which the Applicant said to police was cannabis;[62]
[62]See R1, 471.
·the material contains reference to an incident that allegedly occurred on 5 August 2006.[63] The police narrative provides detail about the Applicant and an alleged co-offender forcing a victim into a vehicle upon production of a firearm. The Applicant and his co-offender then allegedly took the victim to a local skate park where they removed him from the vehicle and made numerous threats towards him and his family that if the victim did not provide them with $10,000 in cash. The police narrative further alleges that either the Applicant or his co-offender again produced the firearm and actually discharged one shot into a metal railing at the skate park. They removed an amount of jewellery from the victim, forced him back into the vehicle and drove him back to a location near the victim’s premises. Ultimately, the police did not proceed with the matter. The police narrative records the following:
[63]R1, 489.
The trial for MAILAU was due to begin In the ACT Supreme Court on Tuesday 12 June 2007. [Redacted in original] made recent admissions to DPP that he was a drug dealer, and this was a possible motive for the Incident. This serious threat to his credibility as a witness, his erratic behaviour, un-cooperativeness and the lack of corroborative evidence led DPP to decide that there was not a reasonable prospect of a successful prosecution, and the trial was aborted.
Exhibits have been finalised.
No further police action Is required.[64]
·the material contains reference to an incident that allegedly occurred on 16 July 2000.[65] The criminal history does not appear to disclose any conviction for this offending which, as alleged in the police narrative, is clearly very serious conduct. It involved the Applicant attending a local bar and taking up with a victim. The police narrative then records that the Applicant “[…] grabbed [the victim] by the neck and smashed a glass into the side of his head.” The police narrative further records that “The victim’s injuries include superficial cuts (2) to the face and a possible injury to the eye (specialist to check)”.[66] The probable reason for the incident not crystallising into a charge and conviction can be found in the police narrative:
Suspected person unable to be located for questioning and for identification as to ascertain whether he was the actual offender.
01/09
Suspect still unable to be located, at neither of mentioned addresses.[67]
[64]R1, 492.
[65]R1, 467.
[66]R1, 467.
[67]Ibid.
While not necessarily falling within the ambit of any of the sub-paragraphs to 13.1.1(1), the abovementioned conduct does comprise, to my mind, “other conduct” capable of being taken into account in the assessment of the level of seriousness of the Applicant’s offending. This specific conduct does, to my mind, militate in favour of a finding that the Applicant’s conduct has been of a very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (b), (d), (e), (f), (g), together with the chapeau to paragraph 13.1.1(1) of the Direction are relevant, and the respective weight I have allocated to each of these nominated sub-paragraphs and chapeau, I am of the view that the Applicant’s conduct can be readily characterised as very serious.
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 must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(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(1)(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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In its SFIC, the Respondent makes the following, and to my mind, correct, contention:
43. The Respondent contends that in assessing the nature of harm to individuals or the Australian community should the Applicant engage in similar criminal or other serious conduct, regard should be had to the Applic’nt's very serious repeated convictions for assault, burglary and theft, which have included threatened use of a weapon. The nature of harm to individuals or the Australian community should the Applicant engage in similar conduct in the future is plainly very serious and may include serious physical or psychological harm to victims.
44. In addition, the Respondent contends that should the Applicant commit further similar dishonesty offences, this would likely result in the destruction of property and financial loss to members of the community.[68]
[68]R2, 15.
Perhaps the most convenient way of understanding the nature of harm that would result from the Applicant resuming his offending conduct upon a return to the Australian community is to understand the nature and extent of his offending to date. At perhaps the low end of his offending (in terms of sentencing), were he to resume his pattern of property offending, victims of that offending would doubtless experience a measure of financial loss or harm.
At perhaps the high end (in terms of sentencing), were the Applicant to re-commit his offences of violence, including violence against women, he cannot cavil with the proposition that significant physical and psychological injury would be occasioned upon such future victims.
There are three aspects of the Applicant’s violent offending which make it more concerning than it is on its face. First, some of his violent offending is random in nature in the way it has been committed upon members of the public. Second, it has, on at least a few occasions, involved firearms and weapons. Third, his offending betrays a lack of any apparent hesitation to cross the threshold of either making a violent threat and/or the infliction of such violence on victims.
I also note that the Applicant has exhibited (though not as frequently or randomly as his other offending) a propensity or willingness to commit violence against women. This prospect of violence against women, conjoined with the three factors identified in the preceding paragraph, gives me grave concerns that the nature of harm arising from his offending could reach catastrophic proportions.
While perhaps not as palpable as the nature of the harm that would result from directly physical offending, it can be fairly found that harm to the Australian community can result if the Applicant re-commits his offences relating to the lawful use of motor vehicles on Australian carriageways. Drivers of motor vehicles are required to be licensed to drive and operate those vehicles, also for a specific reason. Vehicles that are driven by unlicensed drivers imperil insurance coverage for those vehicles in the event property damage or personal injury loss to third parties results from their use. A member of the public who has suffered loss as a result of damage caused by either an unregistered vehicle or a vehicle driven by an unlicensed driver may very well have no recourse against a licensed or other insurer to recover such loss.
In summary:
·any re-commission of violent offending like what the Applicant has previously engaged in does, to my mind, lead to a convincing likelihood that very significant physical or psychological harm (including to a catastrophic level) could befall the Australian community;
·any re-commission of the Applicant’s robbery- or property-type offending could result in significant financial harm; and
·any re-commission of the Applicant’s traffic offending – particularly in the realm of unlicensed driving – has the potential of adverse and damaging outcomes for the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
To my mind, the evidence discloses certain factors or themes which are, or which are said to be, informative about the Applicant’s risk of recidivism. I will consider each of these, and the evidence for them, in turn.
Remorse and insight
The Applicant contends he is now remorseful about his offending, and that he has developed a genuine insight into the factors previously predisposing him to compile his very serious criminal history.
The Applicant’s PCF does not contain any reference to any employment history. In his SFIC, there is reference to him doing “[…] many different jobs, such as lawn mowing, sales assistant, truck driving, supermarket packer, fruit and vegetable seller, car detailer and kitchen hand.”[183] This contention is corroborated by some of the Applicant’s witnesses. In the statement from one of his older sisters, she said:
When we were young, Tom used to find ways for us to make extra money for ourselves like mowing the neighbourhoods lawns or doing gardening for neighbours. When we finished doing the jobs and got our money, Tom would divide the money equally between us. Tommy has always had a very big heart since he was young. He would definitely give his shirt off his back to someone in need.[184]
[Errors in original]
[183]A1, 5[30].
[184]R1, 407.
Another older sister of the Applicant spoke of the Applicant’s willingness to become involved in doing work not just for remuneration, but because he felt that it was of some benefit to others:
Tomasi being the 7th child was always trying to help Mum from a very young age. He would take the lawnmower, rake and some of my younger siblings and would walk the neighbourhood checking if anyone needed their lawns done. He wouldn’t ask people for an amount for his work but would just allow them to give him whatever they could afford. He was also the first to volunteer to sell flowers that my Mum would buy wholesale and make into arrangements, and we would walk door to door and ask people if they were interested in buying it. The rest of us would try and get out of it as we were embarrassed but he always went, as he didn’t want to see my Mum upset.[185]
[185]R1, 434.
In his oral evidence, the Applicant spoke of his work history and said the following:
Mr Charman: After you left school, did you work?
Applicant: Yes, I did find work when I was about 15 till I was about 16, or maybe even earlier when I was 14 till I was 16.
Mr Charman: And what sort of work was that?
Applicant: I was working in like a $2 dollar shop, like a discount store.
Mr Charman: And have you worked through your adult life?
Applicant: Yes, I have.
Mr Charman: And what sort of jobs have you had?
Applicant: I was working in a scrap metal - I was doing RSA work working at concerts. I was - I was doing - working labour work at one stage.
Mr Charman: Were there also times when you didn’t have jobs?
Applicant: Yes, sometimes but, yes, I could always find work.
Mr Charman: Was there ever a time that you accepted unemployment benefits?
Applicant: Yes, when I was younger.
Mr Charman: But was it the fact that most of the time you tried to find work?
Applicant: Excuse me?
Mr Charman: Did you most of the time just try to find some employment?
Applicant: Yes.[186]
[186]Transcript, 38, 42–46; 39, lines 1–15.
I have earlier alluded to the Applicant’s evidence in cross-examination that he has worked “lined up” in the form of “foreman work”. He said “I’ve got my white card. So labour work, yes, I’ve got lined up.” I have earlier expressed my misgivings about the credibility and veracity of this evidence.[187]
[187]See [151]–[157], above.
In terms of contributions he may have made to Australian cultural life, whether as a volunteer or in any other way, the Applicant wrote the words “lead Polynesian events” in his PCF.[188] In his SFIC, it is noted that the Applicant:
[…] has also contributed to the Australian community by assisting with his children and niece’s dances, costumes and barbecues for their multicultural festivals and church group […]. [His sister] also gave evidence of Mr Mailau contributing to help the homeless.[189]
[Internal citations omitted]
[188]R1, 74.
[189]A1, 5[30].
It would not be safe to assume or find that this Applicant has a solid history of remunerative employment in Australia. The evidence about his employment seems to refer more to his altruistic personality as opposed to a stoic and dedicated attitude to a consistent means of earning his livelihood from remunerative employment. As against that, there is the reality that he has made contributions to the Australian community in one form or another.
I am not convinced about his claimed intention to become involved in “foreman work” upon any return to the Australian community. This type of work has not been a prominent feature during his time in Australia. At the risk of repeating myself, the Applicant’s apparent intention to take up this kind of work appears to be more aspirational than something that is actually confirmed and palpable. This is not to say, of course, that he is entirely without employment prospects if returned to the Australian community.
I have earlier recounted the nature, extent, and level of seriousness of this Applicant’s offending. I have also made a finding about the nature and level of his risk of recidivism and the likely consequences arising from any resumption of his pattern of offending upon a return to the Australian community. Viewed in its totality, I am of the view that this Applicant’s offending has been very serious and he has (1) directly challenged the lawful authority represented by the laws governing the Australian community of which he has previously been a member; and (2) has consumed a disproportionate level of this country’s law enforcement, and judicial resources in dealing with the consequences of his offending.
In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)the Applicant has a modest employment history in Australia and can thus be said to have a modest level of contributions via that limited employment history and whatever community-based activities he has participated in;[190]
(b)I accept the Applicant came here as a child and has lived here for close to 40 years. His offending has seen him spend time in criminal and other custody in Australia. Even so, it can be safely found that he has spent a considerable period of time in the Australian community;[191]
(c)the Applicant’s removal to Tonga will have a negative impact on the relevant children in Australia, and his immediate family members such as his adult children and his siblings;[192]
(d)the very serious nature of the Applicant’s offending to date;[193]
(e)there is a convincing and yet to be resolved likelihood that if the Applicant re-offended, the Australian community would suffer physical, psychological and/or financial harm including, quite conceivably, to a catastrophic level;
(f)his risk of recidivism is no different to what it was at the time of his most recent removal from the Australian community. Put another way, and at best, nothing in the material convinces me that his risk of recidivism is materially different to what it was found to be by Burns J when His Honour sentenced the Applicant on 22 May 2018.
[190]Direction, paragraph 6.3(5).
[191]Direction, paragraph 6.3(5).
[192]Direction, paragraph 6.3(7).
[193]Direction, paragraphs 6.3(2)–(3).
Conclusion: Primary Consideration C
I am of the view that the immediately preceding factors (a)–(f) inclusive, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e) to the extent any of them may be relevant to the instant facts.
(a) International non-refoulement obligations
As best as I understood the evidence, no claim is made by or on behalf of the Applicant that his removal to Tonga would engage any of Australia’s non-refoulement obligations that could possibly be owed to him.
This Other Consideration (a) is therefore not relevant to determination of the instant application.
(b) Strength, nature and duration of ties
The Respondent makes the following concession in its SFIC:
To the extent that the Tribunal may find that this consideration weighs in favour of revocation of the Original Decision, the Respondent contends that it is outweighed by Primary Considerations 1 and 3.”[194]
[194]R1, 20[74].
The Applicant first came to Australia in September 1981 aged 6 years. He commenced offending here (as a juvenile) in November 1989 with his first conviction occurring in August 1990 (again, as a juvenile). Having regard to the fact that he has been in Australia for the best part of 40 years, I am of the view that, in relative terms, the Applicant began offending “soon after” arriving in Australia pursuant to paragraph 14.2(1)(a)(i). He was institutionalised for his offending as a juvenile in 1990–1991. His custodial sentences commenced in September 2006 (as an adult), albeit for one month. He was then sentenced to a further custodial term in July 2008, albeit that the court ordered that he be released forthwith. Until removed from the Australian community approximately 3–4 years ago, the Applicant had spent 20–25 years (as an adult) in that community. Accordingly, minimal, if any weight, can be safely allocated to the Applicant on the basis of this 14.2(1)(a)(i).
It may be possible to afford the Applicant a slightly greater level of weight to paragraph 14.2(1)(a)(ii). He may be regarded as having made at least some modest level of contribution to the Australian community via his modest employment history and his equally modest contributions to Australian community and cultural life. Such a finding must be tempered against the frequency and level of seriousness of his offending and, in particular, the fact that he has been removed from the Australian community for the best part of four years. Applying this sub-paragraph 14.2(1)(a)(ii) as favourably as possible to the Applicant, I will allocate a moderate level of weight towards this Other Consideration (b).
It is plainly obvious from the material that the Applicant has significant immediate and extended family in Australia. It appears that those family and other links are with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain here. He confirmed this at the hearing:
Ms Letcher-Boldt: Alright. Mr Mailau, your mother, your children, siblings, nieces and nephews all reside in Australia. Is that correct?
Applicant: Yes.
Ms Letcher-Boldt: Your mother and your siblings - are they Australian citizens?
Applicant: Yes, they are.[195]
[195]Transcript, 67, lines 28–31.
The material helpfully outlines the list of the Applicant’s siblings. He has two younger siblings (a brother and a sister), and six older siblings (five sisters and one brother).[196] The Applicant’s four children are aged approximately 22 (a daughter), 20 (a son), the abovementioned Child C (a daughter, recently turned 18) and the abovementioned Child L (aged 14 years). I have had regard to the specific evidence of the Applicant’s adult children. There can be no cavilling with the proposition of the strength, nature and duration of the ties between the Applicant and those adult children.
[196]See statement of the Applicant’s younger sister: R1, 410.
Further, in his PCF, the Applicant makes mention of “30” uncles/aunts residing in Australia; “50” nieces/nephews residing in Australia; and “60” cousins variously residing in Australia, New Zealand and the United States of America.[197] I will not embark on some kind of analysed verification of the accuracy of these figures. Suffice it to say the Applicant has a significant level of extended family members in Australia.
[197]R1, 66.
Also of relevance to this Other Consideration (b) is the Applicant’s ongoing level of connection with a stillborn child of the Applicant and his ex-wife whom they lost in August 2004. To be clear, I do not suggest that this stillborn child is captured within the ambit of this Other Consideration (b). I refer to the child as a factor which significantly alters the nature of the relationship between the Applicant and his family and friends who do fall within the ambit of this Other Consideration (b).
There was reference in the submissions made on behalf of the Applicant, which I accept without equivocation, of a strong and ongoing cultural bond between the surviving members of the deceased child’s immediate family (ie, the Applicant, his ex-wife and their four surviving children) and the deceased child. It suffices to say that the Applicant made reference to this cultural bond in his evidence in chief:
Mr Charman: Now I know this is a difficult topic for you but you and [your ex-wife] had another child [the deceased child], is that correct?
Applicant: Yes.
Mr Charman: And [the deceased child] was stillborn?
Applicant: Yes. She was stillborn.
Mr Charman: And I’m sorry I can’t remember the name of – is that [redacted] Cemetery where she is buried?
Applicant: [cemetery name redacted]
Mr Charman: [cemetery name redacted]. Your pronunciation is a lot better than mine. Thank you. And did you regularly go and see her burial site?
Applicant: Yeah, I would go there with all the kids.
Mr Charman: And by the kids you mean the other four children, [names of the first two adult children redacted], [Child C] and [Child L]?
Applicant: Yes.
Mr Charman: And can I ask you why did you take them to see [deceased child’s] burial site?
Applicant: It’s just a thing we do all the time. You know? When we go to visit. When I go to visit. I always take my kids with me just so they can go say hello to their sister.
Mr Charman: Did you sometimes go there with [redacted], your ex-wife?
Applicant: Yes.[198]
[198]Transcript, 41, lines 38–44; 42, lines 1–13.
With specific reference to this paragraph 14.2(1)(b), I find that the nature, strength and duration of the Applicant’s relationships with members of the Australian community falling within the ambit of that sub-paragraph are strong and palpable. The Applicant’s stated cultural beliefs and practices with regard to the deceased child, is a factor in the Applicant’s favour for the purposes of this paragraph 14.2(1)(b). I allocate a strong, but not determinative, level of weight in favour of the Applicant pursuant to this paragraph 14.2(1)(b).
Having regard to paragraphs 14.2(1)(a)(i)–(ii), plus 14.2(1)(b), I find that this Other Consideration (b) weighs strongly, but not determinatively, in favour of revocation of the decision to mandatorily cancel the Applicant’s visa.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
I am mindful that the material contains reference to some statements / statutory declarations obtained by the police from witnesses to certain of the Applicant’s offending. For example, there is a statutory declaration from the café owner wherein the Applicant unlawfully made his demand for $50,000.[199] There is a similar statement from the victim of the offending.[200] These statements/statutory declarations were, to my mind, intended to assist police/prosecuting authorities with securing a conviction. They cannot be fairly read as victim impact statements.
[199]See R1, 751–755.
[200]See R1, 744–750.
Accordingly, there is no victim impact statement (or equivalent) now before the Tribunal saying the Applicant’s continued presence in Australia would have an adverse impact on any of the Applicant’s victims of his past offending. This does not dispel the proposition that his past offending, particularly his offending in a domestic violence realm, has had a psychological impact on its victims.[201]
[201]See [58] and [65], above.
In the absence of any victim impact statement (or equivalent) about any impact on a specific victim(s), it would, in my view, be unsafe to allocate any weight to this Other Consideration (d) in circumstances where there is no information before the Tribunal about how non-revocation of the mandatory cancellation would impact any such victim(s).
Accordingly, I am of therefore of the view that this Other Consideration (d) is of neutral weight for the purposes of determining the instant application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and therefore required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent contends as follows:
The Minister accepts that, if returned to Tonga, the Applicant would likely suffer emotional hardship. However, the Minister contends that such hardship would not have a direct bearing on the Applicant's ability to establish himself and maintain basic living standards in Tonga.
The Respondent contends that, on balance, the extent of impediments facing the Applicant is limited. Accordingly, the Respondent submits that this consideration does not favour the Applicant.[202]
[202]R1, 21[79]–21[80].
The written contentions of the Applicant appear in his SFIC:
Mr Mailau doesn’t have any family in Tonga, and doesn’t speak the language. He lacks knowledge of the Tongan culture, having left when he was still six. There will be very significant language or cultural barriers to establishing himself there. Furthermore, Mr Mailau would have difficulty obtaining appropriate treatment for his depression and mental health problems, type two diabetes and cholesterol issues. His removal could cause him harm, will affect his mental and physical health, and could affect his ability to be employed and contributing to society. […]
These considerations strongly weigh in Mr Mailau’s favour.[203]
Applicant’s age and state of health
[203]A1, 6[38]–6[39].
In his PCF, the Applicant responded by ticking the “yes” box to the question “Do you have any diagnosed medical or psychological conditions?”[204] He specified the condition as “Diabetes Type 2”. In terms of medication, the Applicant indicated that he takes “Pills everyday”. As best as I understood his PCF, he did not name any treating doctor or clinician and sought to suggest that the medical support he had received for this condition was received during his time in criminal custody.[205]
[204]R1, 50.
[205]R1, 50.
Earlier in his SFIC, the Applicant refers to having “mental health problems and depression”.[206] During cross-examination, he was asked about whether he was taking any medication for those mental health issues and responded thus:
Ms Letcher-Boldt: What steps have you taken, if any, to address these issues since you were imprisoned and later placed in immigration detention?
Applicant: They had me taking some medication.
Ms Letcher-Boldt: Are you still taking that medication?
Applicant: Since I’ve been in, I think I stopped taking - excuse me - stopped taking that medication maybe October or September last year.[207]
[206]R1, 48.
[207]Transcript, 60, lines 2–8.
Reference should also be made to the purported evidence of the psychologist, Ms Cowdery. I have previously provided my views and findings about her evidence. Out of an abundance of caution, I think it is worth dealing with what she was apparently trying to say with regard to possible adverse mental health outcomes affecting the Applicant upon his return to Tonga with specific reference to his capacity to settle there.
Ms Cowdery’s evidence seemed to evolve through a range of mental health outcomes that could impact on the Applicant’s capacity to settle in Tonga. These adverse outcomes were variously stated to range from (1) literacy issues; (2) trauma; (3) “more depressed [mood]”; (4) “probably suicidal”; and (5) “But I can’t say for sure but probably”:
Mr Charman: And if he were to be deported, I think you’ve indicated the effect on his mental health would be catastrophic?
Ms Cowdery: Correct.
Mr Charman: By that you mean there would be a rapid decline in his mental health?
Ms Cowdery: Yes.
Mr Charman: In turn would that have an impact on his capacity to have any involvement with his children by way of telephone or contact from Tonga back to Australia?
Ms Cowdery: Well, his ability to earning a living, his living to interact, all of those things would be compromised.
Mr Charman: Dealing specifically with his mental health - when you say ‘catastrophic’ if he went back to Tonga, what do you mean by that, do you mean that he would - - -?
Ms Cowdery: He doesn’t speak - he speaks very limited Tongan, he doesn’t have a positive network of family in Tonga, the literacy program for adults in Tonga are not as advanced as the literacy programs here, and I doubt they have any TRTP trainers or senior practitioners in that country that specialises in trauma training, and specialises in trauma management.
Mr Charman: What would be the result of all of those services weren’t available in Tonga, would that mean that he would become more depressed, or he would - - -?
Ms Cowdery: Yes, more depressed, probably suicidal. But I can’t say for sure but probably.
Mr Charman: If he became more depressed and obviously truly unfortunately suicidal, that would then be - and correct me if I’m wrong, have an impact on his capacity to have any relationship even a distant one with his extended family and his children?
Ms Cowdery: Correct.[208]
[208]Transcript, 163, lines 14–39.
To my mind, the following two elements in the evidence militate against a suggestion of catastrophic mental health outcomes in the event of the Applicant’s removal to Tonga. First, the evidence makes it clear that he has already spent at least two relatively lengthy periods of time away from his family be it for (1) the abovementioned period of eight months in or about 2011 (as referred to in the abovementioned police diary notes) or (2) for the best part of four years in either criminal custody or immigration detention. In neither scenario has there been any evidence or previous mention of suicidal ideation.
Second, on the Applicant’s own evidence, despite his physical separation from his family for the best part of the last four years, the Applicant’s current and recent psychological symptomatology has not required him to take any medication. As mentioned earlier, he is not taking any medication at all in relation to his mental health.
In light of the above, it is difficult to understand and accept Ms Cowdery’s contention that the state of the Applicant’s mental health would graduate from what it is now into one that is “catastrophically compromised to the extent his suicidal potential could be greatly increased”[209] in the event of his removal to Tonga.
[209]R1, 447[31].
Thus, the Applicant’s age and state of health cannot be regarded as insurmountable impediments to his removal to Tonga.[210] I have made certain findings about Ms Cowdery’s asserted opinion about the Applicant’s mental health upon a return to Tonga. Despite the physical separation from his family while in criminal custody and/or immigration detention, he is not presently medicated for any such mental health issues and has not been for some considerable period of time. In the final analysis, while the level of community/government subsidised healthcare may not be to the same level as that in Australia, the Applicant will be entitled to the same level of care and support for whatever mental health symptoms he may have (or develop) and for his diabetes as is available to other citizens of Tonga.
[210]Direction, paragraph 14.5(1)(a).
I therefore do not find that his age and state of health are impediments that attract any level of weight to this sub-paragraph 14.5(1)(a) of the Direction.
Substantial or other language or cultural barriers
The Applicant speaks of an apparent literacy problem with English. He also speaks of not being very proficient in Tongan:
Mr Charman: You speak a little bit of the language but do you speak enough to understand people in Tonga?
Applicant: Um – a little bit. I would need a little bit so I can communicate with my mum but it’s more Tongan with English – broken English mixed together.
Mr Charman: So if you were in an environment where it was primarily Tongan speaking would you be able to - - -?
Applicant: I’d be lost.[211]
[211]Transcript, 47, lines 25–31.
The Applicant was cross-examined about the extent of his proficiency in Tongan and said the following:
Ms Letcher-Boldt: And you have returned to Tonga, you said, on two occasions since you arrived in Australia. Is that right?
Applicant: That’s right.
Ms Letcher-Boldt: When you have returned to Tonga, what language have you spoken when you have been there?
Applicant: English, and a little bit of Tongan.
Ms Letcher-Boldt: And you were able to get around speaking English and Tongan? Were you able to get by and complete daily activities?
Applicant: Not really, because I was always with someone.
Ms Letcher-Boldt: You were always with someone, did you say?
Applicant: I would be with someone that knew the place, and knew where we were going.[212]
[212]Transcript, 68, lines 24–36.
Even to the extent the Applicant may have certain literacy issues with his English, and even though his Tongan may be limited, it does not necessarily follow that these will be insurmountable impediments if he were removed to Tonga. With due respect to the Applicant, he seems have made his way through life in Australia quite satisfactorily even with his asserted literacy limitations in the English language. His English skills may not be perfect, but nor can it be said that his life in Australia has been demonstrably or irreparably been comprised as a result of that. It is not unreasonable to presume that he will be able to make his way through life in Tonga with his current level of English language skills and his asserted limitations in speaking Tongan. During his time in Australia, he has made at least two return trips to Tonga. If anything, his Tongan will improve the longer he resides there. I therefore do not consider there to be any substantial or insurmountable language or cultural barriers confronting the Applicant upon his return to Tonga.[213]
Social, medical and/or economic support available to the Applicant in Tonga
[213]Direction, paragraph 14.5(1)(b).
The predominant theme of the Applicant’s evidence can be summarised thus – having regard to his evidence in chief:
Ms Letcher-Boldt: And do you have any other connections with Tonga at all?
Applicant: No.[214]
[214]Transcript, 44, line 33.
The remaining inquiry relates to the extent of the Applicant’s social, medical and/or economic supports available to him in Tonga. While it can be accepted that the Applicant would suffer emotional hardship upon a return to Tonga, the evidence suggests that such hardship is likely to be ameliorated in three ways. First, in her oral evidence, the Applicant’s older sister made a clear reference to the Applicant’s mother re-locating to Tonga to live with the Applicant were he to be removed there:
Witness: My mum is 81 years old and she is sitting – like in the last two and a half years it’s like she’s sitting on, I can’t explain, like on needles. She can’t sleep properly, she can’t – she’s lost weight and maybe it’s due to age as well but, you know, like she’s just – like she would be – she says to us that if Tommy gets sent back to Tonga she would have to go back to Tonga because he wouldn’t be able to cope there with the language barrier and just the way Tonga is. He’s been once or twice as an adult and as a young adult but Tom has no idea what Tonga is about. And so she has sworn to us that regardless how old she is and that there’s no medical facilities, proper medical facility in Tonga, that if Tom is to be sent back then she will have to try and go back to Tonga with him because she doesn’t feel he will cope or survive in Tonga.[215]
[My emphasis and underlining]
[215]Transcript, 114, lines 44–47; 115, lines 1–8.
Second, this same witness referred to the fact that the Applicant is known to have extended family in Tonga:
Ms Letcher-Boldt: And you were talking earlier about how you went to Tonga and lived there for almost a year with your children, is that correct?
Witness: Yes, that’s correct.
Ms Letcher-Boldt: And your husband his [sic] family live there, is that right?
Witness: Yes, a lot of his family still reside in Tonga.
Ms Letcher-Boldt: So you have some extended family in Tonga, is that correct?
Witness: My husband has extended family in Tonga and me through marriage, yes.
Ms Letcher-Boldt: Okay. And when you lived there for a period of almost a year did you have other friends or connections in Tonga or was it just your husband’s family?
Witness: No, my dad has extended family there as well, which I got close with, which is girl cousins a couple of them. But I mostly spent time with my husband’s family.[216]
[216]Transcript, 120, lines 28–45.
The “father” that this witness refers to is, of course, the father she shares with the Applicant who succumbed to cancer in 1980. Thus, the Applicant does have a level of social links and/or extended family links in Tonga.
Third, in terms of government support, the Applicant will have the same level of such support available to him as is available to other citizens of Tonga. Such support, it is accepted, may not be to the same level as that available to people in Australia.[217]
[217]Direction, paragraph 14.5(1)(c).
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of moderate weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which favour non‑revocation very heavily and heavily, respectively. The allocation of weight referable to the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: of strong but not determinative weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: of neutral weight; and
·extent of impediments if removed: of moderate weight in favour of 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, there is not 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 very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs strongly, but not determinatively, in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the strong, but not determinative, weight I have attributed to Primary Consideration B, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
300. I certify that the preceding 299 (two hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
[sgd] Associate Dated: 10 May 2021
Dates of hearing:
18 and 19 January; 5 March; 9 April 2021
Applicant:
Mr Paul Charman (of counsel)
Solicitors for the Applicant
Kikkert Law
Advocate for the Respondent:
Ms Emma Letcher-Boldt, Lawyer
Solicitors for the Respondent:
Clayton Utz
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT’S MATERIAL
R1
Indexed Application Book (paged 1–1149) including:
- Section 501 ‘G-Documents’ (pages 1–395);
- Documents lodged/served by the Applicant with the AAT (pages 396–462) (duplicated G-Documents omitted);
- Documents lodged/served by the Respondent with the AAT (pages 463–802);
- First Instance Decision (pages 803–870);
- Federal Court Proceedings Documents
(pages 871–1089);- Federal Court Orders (pages 1090–1092);
- AAT Direction dated 8 October 2020
(pages 1093–1095);- Relevant legislation and policy (pages 1096–1149).
-
21 October 2020
R2
Respondent’s Statement of Facts, Issues and Contentions (21 pages)
22 December 2020
22 December 2020
R3
Respondent’s Evidence Reference Document
(2 pages)6 April 2021
6 April 2021
APPLICANT’S MATERIAL
A1
Applicant’s Statement of Facts, Issues and Contentions (7 pages)
Undated
27 November 2020
A2
Witness statement of Ms J M Applicant’s friend of 30 years (4 unnumbered pages)
7 January 2021
8 January 2021
A3
Applicant’s summary of evidence (7 pages)
6 April 2021
6 April 2021
ANNEXURE B
ANNEXURE C
2
7
0