Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1506

Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 (7 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0909
Re:Tomasi Mailau
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Member William Frost

Date:7 May 2020

Date of reasons: 28 May 2020
Place:Canberra

The Tribunal affirms the decision made by a delegate of the Minister on 13 February 2020 to not exercise the discretion in s 501CA(4) of the Migration Act 1958 (Cth) to revoke the original decision made under s 501(3A) to cancel the Applicant’s Class BB Subclass 155 Resident Return visa.
........................................................................
Deputy President Gary Humphries AO
Presiding Member
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – trend of increasing seriousness in applicant’s criminal offending - risk of re-offending – the protection and expectations of Australian community – minor children in Australia – strength nature and duration of ties - impediments to applicant if removed to Tonga – applicant’s health considered - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33A, 39
Migration Act 1958 (Cth) ss 499, 501, 501CA, 501G
Cases
FYBR v Minister of Home Affairs [2019] FCAFC 185
Divane and Minister for Immigration and Border Protection [2016] AATA 728
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Lynch and Minister for Home Affairs [2020] AATA 920
Mulligan and Minister for Immigration and Border Protection [2017] AATA 728
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
TVCA and Minister for Immigration and Citizenship [2013] AATA 309
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Deputy President Gary Humphries AO
Member William Frost
28 May 2020

This proceeding concerns whether a decision to cancel the visa of the Applicant, Mr Tomasi Vaolupe Mailau, should be revoked. In December 2018, Mr Mailau’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Act), because a delegate of the Minister was satisfied that Mr Mailau did not pass the character test pursuant to s 501(6)(a) of the Act due to having a substantial criminal record,[1] defined by s 501(7)(c) to mean, inter alia, that he was serving a term of imprisonment of 12 months or more. On 22 May 2018, Mr Mailau was convicted and sentenced in the Australian Capital Territory (ACT) Supreme Court to a term of imprisonment of two years and six months.
[1] In this decision, italics generally indicate a direct quotation.
Mr Mailau subsequently made representations to the Minister’s Department seeking revocation of the mandatory cancellation decision under s 501CA(4) of the Act. On 13 February 2020, a delegate of the Minister decided not to exercise his or her discretion to revoke the decision to cancel his visa. As such, Mr Mailau’s visa remains cancelled and he is currently residing at Villawood Immigration Detention Centre (Villawood) in New South Wales (NSW).
On 19 February 2020, Mr Mailau applied to this Tribunal for merits review of the decision not to revoke cancellation of his visa to remain in Australia. A hearing was held by telephone on 28 and 29 April 2020 and via video conferencing technology on 6 May 2020. Both parties consented to this arrangement at a directions hearing by telephone held by the Tribunal on 6 April 2020, including because the Tribunal had determined that all in-person hearings at registries of the Tribunal across Australia were to cease in response to the COVID-19 pandemic. The Tribunal is satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Tribunal has considered all documents in the bundle of G-Documents filed in this proceeding on 3 March 2020 pursuant to section 501G of the Act,[2] in addition to the bundle of documents produced under summons and filed with the Tribunal on 7 April 2020,[3] together with the parties’ respective Statement of Facts, Issues and Contentions, plus fifteen witness statements and a psychology report filed in the proceeding on behalf of Mr Mailau.[4]
[2] Exhibit R2.
[3] Exhibit R1.
[4] Exhibit A1.
BACKGROUND
On 24 May 1975, Mr Mailau was born in Kolofoou, Tonga.[5] On 12 September 1981, he arrived in Australia.[6]
[5] Exhibit R2, G2, page 40.
[6] ibid., page 109.
On 1 August 1990, at fifteen years of age, Mr Mailau appeared before the ACT Childrens Court charged with theft. He was convicted without sentence and released on a 12-month good behaviour bond.[7]
[7] ibid., page 28.
On 18 September 1991, at sixteen years of age, Mr Mailau appeared before the ACT Childrens Court charged with: theft; burglary; robbery from person; and burglary - intent to steal. He was committed to an institution in NSW for seven months for burglary and for five months for each of the balance of the offences.[8]
[8] ibid., page 28.
On 30 April 1992, Mr Mailau appeared before the ACT Childrens Court charged with theft. He was convicted and given a twelve-month good behaviour bond.[9] On 1 February 1993, aged 17, Mr Mailau was convicted in the Queanbeyan Local Court of malicious damage, fined $100 and required to pay compensation of $130.[10]
[9] ibid., page 28.
[10] ibid.
On 29 March 1993, Mr Mailau appeared before the ACT Childrens Court charged with breach of obligations. He was convicted and ordered to perform 32 hours of community service.[11] Mr Mailau was again before that court on 16 July 1993, aged 18, when he was charged with assault occasioning actual bodily harm and a breach of his obligations from 30 April 1992. He was convicted, ordered to perform 104 hours of community service and given a 12-month good behaviour bond.[12]
[11] ibid.
[12] ibid., page 27.
On 24 November 1993, Mr Mailau was convicted in the ACT Magistrates Court with theft and fined $200.[13]
[13] ibid.
In 1998, Mr Mailau married his now former wife, Miriam Mailau.[14] Their first child, a daughter named Tahlia, was born in May 1998.[15]
[14] ibid., page 63.
[15] ibid.
On 5 November 1998, Mr Mailau was convicted in the ACT Magistrates Court with aggravated burglary - intent assault and ordered to perform 152 hours of community service.[16]
[16] ibid., page 27.
In 2000, his second child was born; a son named Jack,[17] and in April 2003, his third child, a daughter, Claudia, was born.[18]
[17] ibid., page 63.
[18] Ibid, page 64.
On 2 May 2003, Mr Mailau was convicted in the ACT Magistrates Court with possessing a prohibited substance and fined $500.[19]
[19] ibid., page 27.
In 2004, his fourth child, a daughter named Grace, was stillborn.[20]
[20] ibid., page 63.
On 25 October 2004, Mr Mailau was convicted in the Queanbeyan Local Court with assault occasioning actual bodily harm. He was fined $1,000 and ordered to pay court costs.[21]
[21] ibid., page 27.
In June 2006, his fifth child, a son, Master L, was born.[22]
[22] ibid., pages 63, 64.
On 27 September 2006, he was convicted in the ACT Magistrates Court with minor theft (replacement value of less than $2,000). He was convicted and sentenced to 1-month imprisonment backdated to 7 August 2006.[23]
[23] ibid., page 27.
On 9 July 2008, Mr Mailau was convicted in the ACT Supreme Court with attempted aggravated robbery in company and sentenced to 3 years imprisonment, but released on entering a 3 year good behaviour bond.[24] An article published by ABC News that day reported that he pleaded guilty in the ACT Supreme Court, following an incident in April 2006, where he forced a victim to use that person’s credit card to withdraw money from an automatic teller machine in Civic, ACT.[25]
[24] ibid.
[25] Exhibit R2, G14, page 282.
On 12 November 2008, Mr Mailau was convicted in the ACT Magistrates Court with common assault and ordered to undertake 240 hours of community service.[26] On 27 May 2009, he was convicted in the Queanbeyan Local Court with drive unlicensed (first offence) and break and enter building (steal). He received an 18-month good behaviour bond and was ordered to pay compensation of $5,645 together with court costs.[27]
[26] Exhibit R2, G2, page 26.
[27] ibid.
On 4 November 2009, Mr Mailau was convicted in the ACT Magistrates Court with breaching an existing good behaviour bond. He received a 24-month good behaviour bond and was ordered to perform 240 hours of community service within that time.[28]
[28] ibid.
On 8 March 2017, he was convicted in the Downing Centre Local Court in Sydney of stalk/intimidate intend fear physical (domestic). He received an 18-month good behaviour bond.[29]
[29] ibid.
On 8 April 2017, Mr Mailau was involved in an incident at Manuka in the ACT, with the Statement of Facts of the Australian Federal Police alleging that: he approached the victim, told the victim he had a number of debts amounting to $50,000; he threatened to knee cap the victim; and showed him what appeared to be the butt of a firearm.[30]
[30] ibid., page 29.
On 18 August 2017, he was convicted in the ACT Magistrates Court with possess/use a prohibited weapon without authorisation; and two offences of drive while licence suspended by law. He was sentenced to 1-month imprisonment.[31]
[31] ibid., page 26.
In August 2017, Mr Mailau was inducted into a subject titled Education Induction while he was imprisoned at the Alexander Maconochie Centre (AMC) in the ACT. ACT Corrective Services confirmed to the Minister’s Department that he did not complete the program and commented that Mr Mailau refused education.[32]
[32] Exhibit R2, G13, page 266.
On 1 February 2018, Mr Mailau was involved in an incident while in prison which was reported by ACT Corrective Services to have been contravene a direction given by a Corrections Officer. He was counselled and received an Officers warning.[33]
[33] Exhibit R2, G2, page 87.
In March 2018, he was inducted into a subject titled Foundation Skills at the AMC but did not complete the program. The comments from ACT Corrective Services state that: Mr Mailau was withdrawn from education due to lack of unexplained attendances [sic].[34]
[34] Exhibit R2, G13, page 266.
On 22 May 2018, Mr Mailau was convicted in the ACT Supreme Court for the April 2017 offence of make demand with threat to endanger health and drive while licence suspended by law. He was sentenced to a total term of 2 years and 6 months imprisonment commencing from 21 June 2017 and concluding on 20 December 2019.[35] In sentencing Mr Mailau for the April 2017 offence of making a demand accompanied by a threat contrary to s 32(2)(a) of the Crimes Act 1900 (ACT), Justice Burns noted that the maximum penalty is 10 years’ imprisonment, a fine, or both, and stated that:[36]
[35] ibid., pages 25-26.
[36] ibid., pages 30-31.
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 18 months. You were subject to those orders at the time that you committed the present offence.
I also take into account that you had with you what appeared to be a weapon. It is quite clear from the Statement of Facts that you intended that the victim would understand or apprehend that you had a weapon on you and that you were willing to use it in order to enforce your demands. It has been conceded by your counsel, and I think properly so based upon the Statement of Facts, that your victim was clearly targeted, I also take into account the fact that the offence occurred in a public place and was a brazen example of this type of offending.
I note that you have a criminal history, which includes convictions recorded for offences of violence, including common assault, attempted aggravated robbery and robbery from the person, together with those offences to which I referred earlier, which were dealt with at the Downing Centre in March 2017. I do note, however, that there appear to have been no offences of violence other than those that were dealt with in the Downing Centre last year subsequent to June 2008.
A Pre-Sentence Report was prepared for the purposes of these proceedings. You are 42 years old and you have been, in the past, subject to several community-based orders, including community service work. The records of ACT Corrective Services indicate that your compliance with community based orders has been inconsistent, with breach action being initiated in 2009. It is, however, notable that you completed the community service work condition of a good behaviour order in 2010…
You were educated to year 9. Unfortunately, you were expelled from school during year 9, which marked the end of your formal education. You reported an employment history comprising predominantly part-time jobs in a number of industries. It is clear that you are capable of undertaking employment when you wish to do so. As your counsel conceded, there are no alcohol or drug, or mental health issues that are relevant to sentencing today...
The author of the Pre-Sentence Report states that you took full responsibility for your offending and did not offer justifications or excuses for your behaviour. However, you appeared to have little insight or limited insight into the impact of your offending upon the victim and the community. It was the opinion of the author of the Pre-Sentence Report that you are a single man with a long history of violent criminal offending. You have been assessed as at medium to low risk of general re-offending, with your criminal history the most significant criminogenic risk factor.
I take into account the fact that you have been assessed as suitable for community service work. However, in my opinion, the imposition of a good behaviour order, even as part of a suspended sentence involving community service, would not be adequate punishment with respect to the present offence.
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.
The seriousness of this offence and, in particular, the circumstances to which I earlier referred, suggest that general deterrence is also a very significant sentencing consideration. I note your plea of guilty with respect to the matter, albeit that it was not entered at the earliest opportunity. I do take into account that it was entered after negotiations with the Crown, which resulted in a more serious charge being withdrawn and the present charge being substituted.
The court sentenced Mr Mailau to 30 months’ imprisonment on the make demand with threat offence.
In August 2018, Mr Mailau was inducted into two subjects titled Anger Management and Cognitive Self Change at the AMC. ACT Corrective Services commented that, in relation to the former subject, he [e]xited due to non-attendance and, in relation to the latter subject, he [r]efused to be assessed.[37]
[37] Exhibit R2, G13, page 266.
On 18 December 2018, his Class BB Subclass 155 Five Year Resident Return visa, granted on 15 October 2012, was cancelled under s 501(3A) of the Act.[38] As required by that provision, a delegate of the Minister was satisfied that he did not pass the character test under s 501(6)(e) of the Act and was serving a full-time sentence of imprisonment in a custodial institution for an offence against Australia law. He was notified of this decision and invited to make representations about its revocation.[39]
[38] Exhibit R2, G2, pages 110-120.
[39] ibid., pages 105; 110.
On 11 January 2019, Mr Mailau made representations regarding the cancellation of his visa by way of completion of a Personal Circumstances Form produced by the Minster’s Department.[40] He confirmed that he holds Tongan citizenship and has not applied for Australian citizenship. He said that if he was returned to Tonga, he feared becoming homeless and stated that he is unable to speak or write in Tongan and would not be able to gain employment. He described the impact the cancellation of his visa would have or has had on his family as being devastating and that, at the time of the relevant offence, he was going through mental health problems and depression and those he was associating with influenced my decisions, leading to my behaviours. Mr Mailau further stated that I am very remorseful for everything I have done. I am begging to be given another chance to remain in Australia so that I may have the support & love of all my family & kids.
[40] ibid., pages 39-76.
On 14 January 2019, Mr Peter Jennings, the owner of Wholesale & Distribution International wrote a letter stating that, if Mr Mailau remained in Australia, he would offer him full time employment delivering and returning stock, unloading trucks and general store duties, with his hours being 7am to 4pm on Wednesdays to Sundays.[41]
[41] ibid., page 86.
On 10 December 2019, the Department of Home Affairs confirmed that Mr Mailau has never applied for or acquired Australian citizenship.[42]
[42] ibid., page 94.
On 13 February 2020, he was notified of the decision by a delegate of the Minister not to revoke the visa cancellation decision made under s 501(3A).[43] On 19 February 2020, Mr Mailau applied to the Tribunal for merits review of this decision.[44]
LEGISLATION & POLICY
[43] ibid., page 8.
[44] Exhibit R2, G1, pages 2-7.
The Act
The Act provides for the mandatory cancellation of a visa in certain circumstances. Section 501(3A) provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined in subsection (7)); or
...
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or ...
Section 501CA of the Act applies if the Minister makes a decision under section 501(3A) to cancel a visa that has been granted to a person: subsection 501CA(1). Subsection 501CA(4) provides that:
The Minister may revoke the original decision if:
(a)      the person makes representations in accordance with the invitation; and
(b)      the Minister is satisfied:
(i)   that the person passes the character test (as defined by section 501); or
(ii)     that there is another reason why the original decision should be revoked.

Section 500 of the Act provides that applications made be made to the Tribunal for review of decisions of a delegate of the Minister under section 501.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, provided the directions are about the performance of those functions or the exercise of those powers (s 499(1)) and are not inconsistent with the Act or the Regulations made under it (s 499(2)). The person or body to whom the directions are given must comply with them (s 499(2A)). The Minister has made a direction under section 499 of the Act for the purposes of decisions made under, among others, section 501CA, being Direction 79 titled, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction), which applies to a decision made in relation to a visa of the sort previously held by Mr Mailau.
The Preamble to the Direction sets out general guidance and principles for decision-makers, including:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (para 6.2(1));
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (para 6.3(2));
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (para 6.3(3));
(d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling the visa (para 6.3(4));
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (para 6.3(5));
(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled (para 6.3(7)).
Part C of the Direction identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three primary considerations and several specified, but non-exhaustive, other considerations which must be taken into account. The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)The bests interests of minor children in Australia (Primary Consideration 2); and
(c)Expectations of the Australian community (Primary Consideration 3).
The other considerations listed in Part C are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Direction sets out criteria a decision-maker must consider in determining the appropriate weight to be given to each of the considerations. The application of these criteria to the circumstances of Mr Mailau’s application is discussed below.
Paragraph 8 of the Direction notes that:
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (para 8(2)).
Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa (para 8(3)).
Primary considerations should generally be given greater weight than the other considerations (para 8(4)).
One or more primary considerations may outweigh other primary considerations (para 8(5)).
ISSUE
The issue for the Tribunal is whether the decision of a delegate of the Minister to cancel Mr Mailau's Class BB Subclass 155 Resident Return visa under s 501(3A) of the Act should be revoked pursuant to s 501CA(4).
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record as defined in section 501(7). A substantial criminal record is a sentence of imprisonment of 12 months or more.
On 22 May 2018, Mr Mailau was sentenced to an effective total sentence of 2 years and 6 months imprisonment; he therefore has a substantial criminal record for the purposes of section 501(7)(c) of the Act. Both parties submitted that Mr Mailau fails the character test pursuant to the Act. Accordingly, the resolution of this proceeding depends on whether there is another reason to revoke the decision to cancel Mr Mailau’s visa.
EVIDENCE
Mr Tomasi Mailau
Mr Mailau gave evidence to the Tribunal by video conferencing facilities from Villawood. Because of difficulties associated with securing an earlier booking of the video conferencing facilities at Villawood, this evidence was taken on the last day of the hearing, after the Tribunal had heard evidence from most of the other witnesses. Mr Mailau had been able to hear the evidence of those other witnesses and provide instructions to his legal representative while they testified.
Mr Mailau gave evidence about his relationship with his extended family. He told the Tribunal he spent as much time as possible, prior to his imprisonment, with his children. This included hanging out at home, having weekends away and having dinner with them. Since his incarceration he has spoken to his children on the telephone every couple of days. He said he supported his children financially and encouraged them to finish school and to set an example where they don’t follow in my footpath and follow in a good footpath and do the right things in life.
He said he was close to his mother, and prior to imprisonment would take her to doctors’ appointments, to the hospital and to bingo.
Though he had been separated from his former wife for over 10 years, he said he worked closely with her to ensure their children’s welfare. He said they both give 100% to our children.
Prior to incarceration he had often visited his stillborn daughter Grace’s burial place in Canberra, including on her anniversary, and at Christmas and Easter. He said he would be devastated if he were unable ever again to visit her, as I still carry her. He thought about her every day.
Mr Mailau told the Tribunal he was involved in the St Vincent De Paul Night Patrol, a service for homeless people in Canberra. This consisted of giving general help with the night patrols and with the charity’s CEO Sleep Out.
Mr Mailau said his father had died when he was aged about four, and this affected me pretty bad. He often thought about his father. He had never received counselling in relation to his grief because his family was unable to afford it. He couldn’t pay attention at school and was disruptive in the classroom. He also spoke of his cousin, Big Jim who was like a big brother to him but who died when Mr Mailau was 17. His death had a major impact on him, as he had looked up to him and wanted to be like him.
Mr Mailau was asked about the report on him by psychologist, Ms Edwina Cowdery. He agreed with her assessment that he was particularly affected by the death of his father and by the lack of counselling to help him deal with that. He also agreed that he had told her that he had not completed several self-improvement courses while in prison because he was ashamed of other people learning of his reading difficulties. He said he would benefit from an adult literacy program and from psychiatric evaluation, as she had suggested. He also agreed with her that if he undertook these interventions he would be more likely to be a productive member of Australian society.
He was taken to documents where he expressed his apologies to everyone that I have hurt, and was asked specifically who he felt he had hurt by his actions. He responded:
I feel like I’ve hurt my mother, kids, my family, and I’m sincerely sorry to everyone that’s involved in this, why I’m behind here.
He was taken to a statement where he said that his time in prison had helped me realise this is not the way forward for me. He was asked how imprisonment had helped him decide he didn’t want to reoffend, to which he responded:
…I just don’t want to disappoint my family anymore. Going in, you know, I’m getting too old for this, and I want to set a good example for my kids and make my mum proud, and just being there, seeing everything that happens in gaol, it’s my first time ever being there, I don’t ever want to be in that position, I don’t want my kids to be in that position. Ever. And then my kids, my kids like my nephews, my nieces, everyone.
He said his return to Tonga would have a major impact on his extended family and on himself; he said I don’t have no one left.
Mr Mailau told the Tribunal he had converted to Islam, and that reading the Koran had helped him avoid being influenced by the wrong people in gaol. This ensured he never got into any trouble in gaol. He had read the Koran (despite his poor literacy skills) from cover to cover while there, and he prayed five times a day.
When asked about the contribution he had made to Australian society, Mr Mailau referred to his charity work and to taking his children to Polynesian dancing exhibitions.
Under cross-examination, Mr Mailau said he had been expelled from school for fighting, and had gone to work afterwards as a sales representative in a shop. He said he did not recall the offences he had been charged with as a juvenile.
He was asked to explain the circumstances leading to his conviction for attempted aggravated robbery in company in the ACT Supreme Court in 2008, in which he and a companion had attempted to force another man to withdraw money from an ATM machine. Mr Mailau responded:
No. I was there, but I wasn’t involved with it…
--It was my friend. I was trying to pull my friend away from him.
Further questioning proceeded in this way:
Can you explain to us the incident, then? Why you were sentenced to such a punishment?---Well, I was trying to stop my friend at the time. Because he was being drunk and silly, and I got caught up all in it.
Why did you target this man? Why did you target the victim?---I didn’t target him.
He said he was pretty sure he hadn’t been drinking at the time of this incident, but couldn’t be certain. He was unable to recall, without prompting, the punishment he had received for this offence (three years imprisonment, suspended upon entering a good behaviour bond).
Mr Mailau was then asked about his conviction in 2008 for assaulting his ex-wife by striking her across the face. He said he recalled the incident but only vaguely recalled his two sisters arriving and could not recall which two sisters they were. He did not recall striking his ex-wife across the face, nor could he explain the reasons for doing so. He denied that he had targeted her, however. He said he was just drunk and stupid at the time.
He told the Tribunal he learned from the incident that violence is not the answer and drinking is no good, and said that he had not been violent towards women or threatened them since that incident. He was asked a second time whether he had threatened a woman since then and he answered No.
Mr Mailau was then taken to an incident in 2017 which led to a conviction for stalk/intimidate intend fear physical harm (domestic), in relation to a woman with whom he had previously been in a domestic relationship (Ms P). He agreed that he had been charged with stalking and intimidating her, and that he had threatened her. When asked why he had previously said he had not threatened any woman since 2008 he said, I forgot all about it to tell you the truth.
He was asked about a police fact sheet that had apparently been handed up to the court, which recorded that this relationship with Ms P consisted of various incidents of unreported domestic violence, until 2014 when the victim moved to Sydney. Mr Mailau denied that there had been various incidents of domestic violence prior to the incident giving rise to the conviction. When asked to explain what conduct had led to that conviction, he responded I said something silly stuff [sic] on Facebook when I was drunk and that was about it. He was asked what the silly stuff was, to which he responded that he couldn’t recall as it was so long ago.
He added, I’m not that person anymore. He agreed the messages and threats would have made her fearful, because no woman should be talked to like that.
In relation to his ex-wife and to Ms P, he said I was never violent in any of the relationships.
Mr Mailau was asked about a conviction for which he spent a month in gaol in 2006. He could not recall any details of the incident leading to this conviction.
Mr Mailau was asked about the incident in April 2017 which led to his conviction in May 2018 in the ACT Supreme Court and being sentenced to two years, six months imprisonment. He gave this account of the incident:
I saw a friend who knew my mate. He’d borrowed, I think, two, three grand, and all I said to him was to go and see my friend. I happened to see him by chance when you are and I said, ‘You should go see him and sort out what you owe.
Mr Mailau denied being armed at the time, or that he had asked him for money. He denied being intoxicated at the time. He agreed that he was characterising this as just a random incident. He said he had had a problem in the past with alcohol, but not with illicit substances.
Mr Mailau was asked whether he would say that he had been violent towards random members of the community. He responded No.
He agreed he had not told Ms Cowdery about the domestic violence incident involving his ex-wife and did not think he had told her about threatening Ms P. He could not recall what he told her generally about his criminal history.
Mr Mailau was asked whether he agreed with this assessment in Ms Cowdery’s report:
Mr Mailau’s violence risk potential factors indicate Explosive expression of anger, Hostile control in relationships, History of trauma without fearfulness, History of antisocial behaviour, Sensation seeking, Impulsivity, Agitation and Alcohol as a disinhibitor.
He said he wouldn’t disagreed with the assessment.
Mr Mailau was asked about why he had told the Department in a submission that he was waiting to get into self-improvement courses in gaol when in fact he had already begun those courses but dropped out. He explained that he learned other people would be on those courses, that he would be embarrassed when they discovered his illiteracy and so was waiting for new, one-on-one courses to avoid that problem.
He was asked to clarify how long he had volunteered with St Vincent De Paul. He said it was two days. He also said he did some community work at a church in 2010.
Mr Mailau was asked to outline what problems he would have if forced to return to Tonga. He responded that he wanted a chance to stay in Australia to prove to his kids that he can be a better man and a dad, a father figure for them to see.
I want to make up for what I’ve done wrong in the past. I want to make my mum proud of me and my kids to have someone they can look up to.
He said he spoke very little, if any Tongan, about one percent, despite Tongan being a spoken language in his household as he was growing up. He was asked to explain how he had conversations by telephone with his mother. When asked what language he conversed, he said It’s more English, but then said that there’s some things in Tongan she says and then I’ve got to get my sisters to tell me what mum’s actually said. He agreed however that his sisters were not on the call with her each night. He said that his mother spoke to him in English, but that her English was not the best. He agreed he said some words to her in Tongan.
In re-examination, Mr Mailau was asked if he spoke to his adoptive sister Ms Junita Moller-Nielsen using a couple of words in Tongan. He agreed.
He was asked how he would like to make up for what he’d done in the past. He said he would like to do more charity work for St Vincent De Paul, including helping the homeless and working in their shop. He said he had sometimes seen homeless people on the street and had given them money.
Mr Mailau said he had given up drinking alcohol. He agreed he had been drinking alcohol at the time of his offences against his ex-wife and Ms P, but he had given up by the time of his offence at the café. In relation to the latter, he said he took full responsibility for his behaviour and had pled guilty to the charges.
In answer to questions from the Tribunal, Mr Mailau said he stopped drinking in 2016, about a year before going to gaol. He also said that he had worked in different jobs throughout his life, and had generally ceased employment because the work had slowed down. He had worked for approximately 3½ of the five years before being incarcerated.
Mr Mailau was asked if he knew the man he threatened at the café at Manuka. He said he did, and said his name was Jason. He did not recall his surname.
The Tribunal also took evidence by telephone from 14 members of Mr Mailau’s family. That evidence is set out below. Each family member also provided a written statement which generally conformed closely to his or her oral evidence.
Mr Tonga Tupou
Mr Tonga Tupou gave evidence by telephone to the Tribunal. Mr Tupou is Mr Mailau’s brother-in-law and said to also be a deputy spiritual assistant. He told the Tribunal that he works for the CBD Chauffer in the ACT.
Mr Tupou has known Mr Mailau since Mr Mailau was young; Mr Tupou married Mr Mailau’s eldest sister and Mr Mailau stayed with Mr Tupou for many months. Mr Tupou told the Tribunal that Mr Mailau was a good boy, a loving young fella and had gone to Sunday school. In this regard, Mr Tupou said he had no problems with Mr Mailau as a brother-in-law.
Mr Tupou said Mr Mailau had beautiful children with whom he was very close; he was a good father to them and always looked after his family. However, Mr Tupou also said he was unsure how many children Mr Mailau had and where his family lived in the ACT.
By way of cross-examination, Mr Tupou was asked whether he was aware of Mr Mailau’s criminal record to which he replied, not for this one; he was unaware of the details of Mr Mailau’s latest offence, however he remembered attending court with Mailau a long time ago. When Mr Tupou was further asked whether he had an understanding of Mr Mailau’s offending, he replied, honestly…I don’t really know Tomasi, his lately criminal records and said that he does not have an understanding of this offending. Mr Tupou said he is a very busy person with a church congregation; however, he told the Tribunal that he knows that Mr Mailau visits his mother. Mr Tupou confirmed that his main interaction with Mr Mailau has been through his church, although he was unsure when Mr Mailau last attended but said that Mr Mailau does help with his mother and with financial contributions towards the church. When asked further about how he interacted with Mr Mailau and how Mr Mailau assisted the congregation, Mr Tupou said Mr Mailau sometimes attended church, along with his siblings, although they also attend other congregations. In this regard, Mr Mailau’s mother was said to be a strong member of his church, together with siblings; they contribute, especially with funding for the church and for Tonga.

There were no questions for Mr Tupou by way of re-examination. Following a question from the Tribunal about his church, Mr Tupou confirmed that it is a Free Wesleyan Church, which was said to be mainly Methodist Tongan.
Ms Latutama Anga’aefonu Mailau
Ms Latutama Anga’aefonu Mailau, Mr Mailau’s sister, gave evidence by telephone. Ms Mailau told the Tribunal that she is currently the National Absentee Manager for Qantas ground services in Sydney.
In her evidence-in-chief, Ms Mailau was referred to the statement she had provided to the Tribunal and a story contained therein from when she was five years old. Ms Mailau was asked what her mother was doing for work at this time and she said that her mother had approximately three jobs, being a baker, hotel cleaner and having another cleaning job. Their mother was said to be the sole provider because the children were not then old enough to assist and earn an income.
Ms Mailau confirmed that her mother was married to her biological father who passed away just after she turned one in 1979.
She was referred to her statement, in which she said that Mr Mailau was remorseful and deeply regretted his past actions. She was asked why he was regretful. She told the Tribunal that in the months since December 2019 she has been visiting her brother at Villawood on a weekly basis and in talking to Mr Mailau she knows that he has changed and wants to be a better person.
Ms Mailau said that she would be greatly affected if Mr Mailau’s visa cancellation was not revoked, because he’s my big brother, they talk daily and he was said to assist her emotionally. In this regard, Ms Mailau said her brother is a very calm influence on her and is a sounding board for any professional or personal problems; he was always willing to assist with whatever he can. Additionally, Ms Mailau said that it would be very sad for his children and her mother.
In cross-examination, Ms Mailau confirmed that she has lived in Sydney for four years, but previously lived in Canberra. Mr Mailau lived with her in 2017 in Sydney, before he was incarcerated.
Ms Mailau told the Tribunal that she did not have a lot of understanding about Mr Mailau’s criminal history, but she said she knew they are serious charges and that he is remorseful, very ashamed of what he has done and seeks forgiveness from God.
Ms Mailau was asked whether any life events could explain her brother’s offending and she replied that she was unsure, but that he was unable to deal with their father’s death as well as the death of his daughter, Grace, and the death of their first male cousin, Big Jim, who was said to be a role model and father figure for Mr Mailau. These events, Ms Mailau said, would have had a massive impact on Mr Mailau.
Ms Mailau told the Tribunal that if Mr Mailau were released back into the community he would be living with their mother in Canberra and would be employed straight away, either through volunteer work or something else. However, if Mr Mailau lived with her in Sydney she could also support him.
Ms Mailau was asked what will have substantively changed in relation to Mr Mailau’s living arrangements that would prevent him from reoffending. She said his incarceration has given him time to think about all the wrong things he has done and how to be a better person for his community, family, children and mother. In this respect, Ms Mailau said she strongly believes that her brother has changed.
The Tribunal asked Ms Mailau whether she had knowledge of her brother’s offences to which she said that she was aware of a firearms charge and that in his younger years he was charged for fighting in the city, but does not know any detail because they don’t go into it with Mr Mailau because it hurts. Mr Mailau was said to know that he’s done the wrong thing, but he has a good heart, he is a good big brother and a good dad.
Ms Potatala Mailau
Ms Potatala Mailau, another of Mr Mailau’s sisters, gave evidence. Ms Mailau told the Tribunal that she is an executive assistant and lives in the ACT with her mother, sister, husband and their four children. Ms Mailau said that if her brother was released he would be allowed to live with them; they had plenty of room and their mother would like for him to still live with us. In this regard, Mr Mailau would be supported by the family in relation to finances, his health and any other requirements.
Ms Mailau told the Tribunal that, although Mr Mailau had been unemployed for most of his life, he assists his mother around the house with chores, errands and appointments. Mr Mailau was said to be a very good father and always spends time with his children.
Ms Mailau also said that they did not have any immediate family in Tonga; All of us are here in Australia. In this regard, Ms Mailau told the Tribunal that if Mr Mailau were returned to Tonga he would be disadvantaged because he had no immediate family in the country, he had been in Australia for almost 40 years, he doesn’t …speak the language very well and Tonga is very corrupt. Additionally, it would be sad for all his siblings, nieces and nephews, but especially for their mother and Mr Mailau’s children.
In cross-examination, Ms Mailau confirmed that, before Mr Mailau’s most recent incarceration, he was living in Sydney for a couple of years where he was working but she was unsure of his then employment. Ms Mailau told the Tribunal that at this time she saw her brother fortnightly when he would visit his mother in the ACT.
Ms Mailau said she was aware that her brother has criminal records, including because the police would attend and search their mother’s house in relation to Mr Mailau’s offending. Ms Mailau said that all I know of his most recent offence was that it related to threatening his ex-girlfriend. Ms Mailau said that she was at her mother’s house when the police came to search it, but she was unaware of any other incidents related to Mr Mailau’s offending. In this regard, Ms Mailau confirmed that her brother had not told her of his offending.
Following cross-examination, and in relation to her statement before the Tribunal in which she said that the family was aware of his criminal charges,[45] the Tribunal asked Ms Mailau whether she was in fact aware of the charges against her brother. Ms Mailau said she knew that he had a bad criminal record with the police and was aware of the current charge in relation to threatening someone. In this regard, Ms Mailau said that she was not aware of any other offences other than her brother threatening others.
[45] A1, Witness Statement of Potatala Mailau dated 19 March 2020, page 1.
Ms Eleni Tabulutu
Ms Eleni Tabulutu, another of Mr Mailau’s sisters, gave evidence to the Tribunal and told it that the age difference between herself and Mr Mailau was about 15 or 16 months.
In a one-parent household, Mr Mailau was said to always be helping out by doing chores for people, such as lawnmowing to earn money for the family. In this regard, Mr Mailau was described by his sister as so generous; he always looked after me and my children, including asking whether she needed help to pay for her son’s 21st birthday party. Mr Mailau was also said to have helped the homeless: one example being when he and his sister went out in the city when they were young he walked past some homeless people and he gave the last of his money to one man. Mr Mailau was said to have told his sister to think about if it was you, wouldn’t you want someone to be nice to you?
Ms Tabulutu told the Tribunal that her brother was heavily involved in his childrens’ lives: they look at him like a piece of gold and adore him. This was said not to be due to him providing material things, it was as a result of him spending time with them, always prioritising them, doing things and hanging out together.
She confirmed that her brother and sister-in-law’s marriage ended when their youngest child was approximately one year old, however this was said not to have reduced his involvement with his children, if anything, Mr Mailau was more involved; he was always on the phone with them, checking up on them, picking them up and spending time together.
Mr Mailau was also said to have provided money for his children all the time to buy clothes, bedding or anything else they required and also told his children to help out their mother around the house. Mr Mailau would also provide money to his mother and family members, but Ms Tabulutu was unsure whether this extended to his friends. Mr Mailau was also said to have taken his children to church and provided funds towards the congregation.
Ms Tabulutu confirmed to the Tribunal that her brother had a daughter called Grace that was stillborn; her daughter is named Grace after Mr Mailau’s daughter, who is buried at Gungahlin cemetery in the ACT. Mr Mailau is said to visit the cemetery, including at Christmas with his children, and Grace remains a big part of his life.
Ms Tabulutu said that she visited Mr Mailau at AMC many times. At first, she did not know what he was in the AMC for, but found out from her other sister; Mr Mailau did not volunteer information about his offending, but she eventually found out the reason. In this regard, Mr Mailau was said to regret what he had done, felt bad for his mother, missed his children and wished he had not offended.
Ms Tabulutu said she would absolutely describe her brother as hardworking; he was always helping their mother, doing odd jobs and did not want to claim any unemployment benefits.
She told the Tribunal that she had five children and that they adore their uncle, Mr Mailau. He is considered a second dad. To this end, she said she separated from her husband when their eldest child was four or five. Mr Mailau had taken his nephew, Mr Orry Kuzma, under his wing; they went to football games and Mr Mailau attended his birthdays. In addition, Ms Tabulutu’s youngest daughter was said to have broken down in tears after they visited Mr Mailau at Villawood because she wanted to take him home. Another daughter, when she was approximately six, wanted to write a letter in support of her uncle, which was provided to the Minister’s Department.
Ms Tabulutu told the Tribunal that her brother spoke to their mother about ten times a day now he was at Villawood. She confirmed that: they had no living family in Tonga; they came to Australia in the early 1980s; their father was buried in Tonga; one sibling lives in America, but otherwise they all reside in Australia. In this regard, Mr Mailau’s Tongan language skills were said to be terrible; you can’t understand it and he can’t speak Tongan.
In cross-examination, Ms Tabulutu confirmed to the Tribunal that her brother was living in Sydney before he was incarcerated. She was unsure what Mr Mailau did for work at that time, but it may have been car wrecking, and she was unsure how long it had been since he had lived in the ACT. In relation to his employment history in the last ten years, Ms Tabulutu said her brother worked in car detailing, car wrecking, at a mechanic shop and the Fyshwick markets in the ACT. She also said she was unsure how often Mr Mailau would visit his family in the ACT while he was living in Sydney, because she was living away from the ACT for a while.
She told the Tribunal that she understood her brother was imprisoned because he was threatening someone with a weapon, however she did not know any of Mr Mailau’s other criminal history.
Ms Halaevalu Kivalu
Ms Halaevalu Kivalu, another of Mr Mailau’s sisters, gave evidence by telephone and testified that their family of nine children had migrated to Australia with their mother in the early 1980s.
Ms Kivalu said that their mother provided for the family by doing odd jobs, such as cleaning, washing dishes at restaurants and picking fruit. Mr Mailau was said to assist his mother by also looking to do odd jobs, for example, lawnmowing around the neighbourhood and selling flowers door-to-door. While some of the children would be embarrassed, Mr Mailau was not and would make most of the money. Ms Kivalu said her brother was always the most generous in their family and would assist family or others with money as needed.
At school, Mr Mailau was said to have struggled, including because of racism… in those days and his undiagnosed dyslexia. Because of these difficulties, Ms Kivalu said her brother was disruptive in class and left school at an early age. In this regard, she wished the family could have helped Mr Mailau more at this time but they did not know what was wrong with him.
Ms Kivalu told the Tribunal that Mr Mailau can’t read or speak Tongan properly, although he can understand some things, because of his mother, who does not speak English. Ms Kivalu also said that her family do not have immediate family in Tonga, only distant relatives and there is no home in Tonga. To this end, Mr Mailau would need the assistance of extended family for his living arrangements; unlike Australia, there was said to be no services to assist with housing in Tonga. Additionally, Ms Kivalu told the Tribunal that the Tongan health system was substandard. She and her family recently lived there for almost one year and they did not use the public health system. They returned to Australia because Ms Kivalu had high blood pressure, and was subsequently diagnosed with kidney disease, for which she would not have been able to receive adequate health support in Tonga.
Ms Kivalu told the Tribunal that Mr Mailau supported their mother; he lived with her, drove her around, including to shop and attend Centrelink for her pension. When Mr Mailau lived in Sydney, he was said to always come to the ACT to see his mother and provide her with support. Ms Kivalu said that if Mr Mailau remained in Australia she would assist him, including with potential employment at her sons’ restaurant as a kitchen hand, in order to keep him busy, earn an income and have the drive to do something.
Mr Mailau was said, by Ms Kivalu, to be a very good father, and he misses his children a lot. He always sought to provide them with whatever other children had, especially any school requirements. In this regard, Mr Mailau was said to assist his former wife in co-parenting their children. Mr Mailau was also said to help her children’s friends and tell them to do something productive with their lives and how to stay on track.
Mr Kivalu told the Tribunal that she visits Mr Mailau once a week so he was not alone, together with their mother and his children. Mr Mailau’s mother was said to visit him by travelling to Sydney from the ACT by bus or with her children. Mr Mailau was said to be remorseful and felt bad for what he did, he especially felt bad for his family having to visit him while incarcerated. To this end, his mother did not know about her son’s incarceration for six months. While Ms Kivalu said that she did not know the details of the court case that led to Mr Mailau’s incarceration, she knew that he had threatened someone, but that’s all I know.
Ms Kivalu told the Tribunal that she would be heartbroken if Mr Mailau were removed to Tonga and it would destroy their family. This would especially affect their mother, in circumstances where their stepfather had died only one year ago. Moreover, Mr Mailau’s mother would be worried about her son in Tonga and may feel like she needed to go to Tonga to be with him.
In cross-examination, Ms Kivalu said she knew of Mr Mailau’s early offending, like break and enter, but she did not recall what time he served in prison and, despite some altercations, was unsure of any other crimes he had committed. Ms Kivalu said that she understood that he was most recently incarcerated for threatening someone. However, she did not recall much else regarding this offence because she did not think that she was in Australia at the time and she did not get a full run down of what had occurred.
Ms Kivalu was asked whether she was aware of her brother attending rehabilitation programs, to which she said that she had encouraged him to attend, but that he would be embarrassed about being unable to write and people would know he couldn’t do it.
Ms Kivalu told the Tribunal, in response to a question about what would have substantively change between when her brother was incarcerated and now, that Mr Mailau has found God and was reading the Koran. In this regard, it was said that Mr Mailau’s eyes have been opened to the effect on others and community and he has realised that a stupid mistake can affect their entire family. With age and experience, Mr Mailau was said to have recognised that it was not worth the pain. Finally, Ms Kivalu said that her brother would live with their mother if he was released into the community.
The Tribunal asked Ms Kivalu about her brother’s religion. Ms Kivalu said that their church was Methodist and confirmed that Mr Mailau was reading the Koran, an Islamic, not Christian, holy book. Upon further questioning about whether her brother was a Christian, Ms Kivalu said that he had converted to Islam because it works for him; although she was unsure how long Mr Mailau had been a practicing Muslim. He was said to have converted before he was incarcerated.
Ms Junita Moller-Nielsen
Ms Moller-Nielsen gave evidence by telephone and told the tribunal that she is a 48-year-old police officer with the Australian Federal Police (AFP).
She said she considered her relationship with Mr Mailau to be that of a sibling; she was an unofficial member of his family and has been since she was fourteen. She said she left home in 1984 or 1985 and was unofficially adopted by the Mailau family in approximately 1988. Ms Situati, Mr Mailau’s mother, was said to consider Ms Moller-Nielsen a daughter: they all celebrate birthdays and other family occasions together.
Ms Moller-Nielsen was asked to describe Mr Mailau as a father and she said that, as far as she knew, considering her deployments overseas with the AFP, he was a kind and loving father. She said she considered Mr Mailau to be her son’s uncle and his family always looked after her son when she was on deployment.
She was asked about Tongan culture and the importance of family. She said Tongan culture was very family oriented and Mr Mailau’s family spent a lot of time together, such as celebrating birthdays and praying. She told the Tribunal that Mr Mailau’s family were very supportive and close to each other.
Ms Moller-Nielsen said the effect of Mr Mailau being removed from Australia would be very negative on his children; his mother and siblings would also be heartbroken and devastated, including because it was unlikely that he would be allowed to return to Australia following any deportation.
In cross-examination, Ms Moller-Nielsen was asked about her awareness of incidents for which Mr Mailau has been arrested. She replied that she did not know about any of these incidents or any of Mr Mailau’s crimes. She was also unaware of any rehabilitation programs that he had undertaken in relation to his offending.
She told the Tribunal that Tongan was the main language spoken in the family home and said she thought Mr Mailau understood Tongan and also believed that he spoke Tongan.
In re-examination, Ms Moller-Nielsen said Mr Mailau had said to her, I love you, Sis, in Tongan. Mr Mailau was said to have said hello; good, thank you and the basics to her because her Tongan is not proficient. In this regard, Mr Mailau was said to mostly speak Tongan at home, and it took a while for him to speak English.
Following the completion of re-examination, the Tribunal asked Ms Moller-Nielsen, when she was present and growing up in the Mailau family home, what language Mr Mailau used to speak to his mother; she said it was Tongan, although she has not seen him read or write in Tongan and could not say whether he was fluent.
Ms Miriam Mailau
Ms Miriam Mailau, the former wife of Mr Mailau, gave evidence and told the Tribunal that she works at the Department of Foreign Affairs and Trade. Ms Mailau confirmed that she and Mr Mailau have four children; they have been divorced for a little over ten years.

Ms Cowdery diagnosed him with Unresolved Grief, Major Depressive Disorder, single episode and obsessive-compulsive disorder.[61] The Tribunal accepts that he suffers from these conditions. Ms Cowdery told the Tribunal that Mr Mailau’s mental health would be terribly bad if he were returned to Tonga, which she said had questionable services to address mental health and he would, in this regard, be vulnerable, including to suicidal ideation. Although there was nothing before the Tribunal to suggest that Ms Cowdery had any expertise on the subject of Tongan psychological services, the Tribunal accepts that Mr Mailau will suffer some difficulties in Tonga on account of his diagnosed conditions. It accepts the assertion that medical services to treat such conditions are inferior to those available in Australia. However, it notes that he was able to secure and hold down jobs in Australia notwithstanding that he suffered from these conditions, and there appears to be no reason he should be unable to do the same thing in Tonga in similar circumstances. The Tribunal notes that there was no evidence of Mr Mailau receiving any medication or treatment for any of these conditions other than, presumably, his diabetes. The absence in Tonga of medication or treatments that he was not, in any case, receiving in Australia does not appear to be a significant impediment. With respect to diabetes, the Tribunal takes official notice that it is a significant public health problem in Tonga,[62] and concludes that Mr Mailau will most likely be able to access treatment on a comparable basis to other diabetic citizens of that country.
[61] Exhibit A1, Report of Ms Edwina Cowdery dated 20 April 2020.
[62]
The Tribunal accepts that Mr Mailau has no immediate family in Tonga and would suffer emotional hardship upon his return to that country due to being separated from his family in Australia, particularly his children and elderly mother. Mr Kikkert said that if he were removed to Tonga he would in essence be homeless. However, one of his sisters referred to distant relatives there who might be prepared to offer him accommodation. Again, if Mr Mailau has a capacity for employment, there would be no reason he could not fund his own accommodation.
The Tribunal was also told in evidence from Mr Mailau’s family that Tonga is corrupt, has no social welfare system upon which he could rely and has a substandard health system. There is no evidence beyond mere assertion for these characterisations. Nonetheless, the Tribunal is required to consider the impediments Mr Mailau may face if removed to that country in the context of what is generally available to other citizens of that country (paragraph 14.5 (1) of the Direction). Except in one respect, there is no evidence that Mr Mailau will be disadvantaged, relative to other residents of Tonga, with respect to accessing housing, social welfare or health services.
The one respect in which he may face an impediment not experienced by other residents of Tonga relates to his command of the Tongan language. It was contended that Mr Mailau had little Tongan language and this would present a substantial barrier if he were removed there. Indeed, the submissions handed up on his behalf stated that he doesn’t speak the language. He told the Tribunal he speaks about one percent Tongan. This contention was supported by evidence from a number of his family members. However, the evidence here was somewhat mixed, suggesting that he fell somewhere in a scale that was short of fluency but far from being inarticulate. When asked how well he spoke Tongan, his mother said Not too much, just enough …to speak the language. Ms Moller-Nielsen, considered by her and the Mailau family to be an unofficially adopted member of the family, told the Tribunal that Mr Mailau did speak Tongan in the family home, although she was uncertain of his reading and writing ability. (The Tribunal does not accept the submission that, since Ms Moller-Nielsen was not herself fluent in Tongan, she could not give evidence that Mr Mailau was speaking in that language; there was no evidence that Mr Mailau spoke any other language, and it follows that if he was not speaking English he must have been speaking in Tongan.)
Ultimately, Mr Mailau’s proficiency in Tongan is a matter of degree. The Tribunal considers that the conclusion can safely be reached that Mr Mailau has a basic capacity to communicate in Tongan, based in particular on his relationship with his mother. First, it beggars belief that he could be raised in a single-parent family (where Tongan was often spoken) by a woman who spoke virtually no English and not have some capacity to communicate with her while growing up. Secondly, the evidence was that he and his mother now spoke virtually daily, generally without another family member being part of the conversation. Again, given Ms Situati’s very rudimentary English skills, it is hard to see how this could occur if Mr Mailau speaks only one percent Tongan. His mother said that she and her son communicate very well, which must refer to him having some capacity to communicate in Tongan. Therefore, the Tribunal does not accept that there would be a substantial language barrier for Mr Mailau if he returned to Tonga. For completeness, the Tribunal also does not accept that Mr Mailau will encounter any substantial cultural barrier that would present an impediment to him establishing himself and maintaining basic living standards, including because of Mr Mailau’s ability to understand the Tongan language and communicate, albeit in a basic manner, in Tongan.
The Tribunal also does not accept that any past issues Mr Mailau had with alcohol would see him face an impediment to establishing himself and maintaining basic living standards in Tonga because the Tribunal was told by Mr Mailau that he had stopped drinking alcohol before he was imprisoned in 2017, he has not drunk alcohol since that time and he does not intend to once released from AMC. In this regard, the Tribunal notes that there was also no medical evidence led in the proceeding regarding Mr Mailau’s issues with alcohol, although he told the Tribunal that he was intoxicated during the commissioning of some of his criminal offences.
Having regard to all of the above, the Tribunal considers that this consideration weighs slightly in favour of revocation of the cancellation of Mr Mailau’s visa.
CONCLUSION
It follows from the preceding paragraphs that two of the three primary considerations under the Direction weigh strongly against Mr Mailau in the Tribunal’s determination of his application for revocation of the decision to cancel his visa. The Tribunal accepts that Primary Consideration 2, regarding the best interest of minor children in Australia, weighs strongly in his favour.
The Tribunal is required to give greater weight to the primary considerations than to the other considerations in the Direction. While two of the other (non-primary) considerations weigh in Mr Mailau’s favour, three other considerations make no contribution to his case.
Ultimately, Primary Considerations 1 and 3, relating to protection of the Australian community from criminal conduct and the expectations of that community, weigh heavily against revoking the cancellation of Mr Mailau’s visa. The weight afforded by the remaining primary consideration, being Primary Consideration 2, and the other considerations fails to tip the balance in Mr Mailau’s favour. The Preamble to the Direction states:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling…the visa.
We consider that this is such a case. Mr Mailau has a long history of criminal offending in Australia, which exhibits a trend of increasing seriousness. The Tribunal has found that the risk posed by Mr Mailau of further violent offending is too great and unacceptable. Having regard to the above assessment of all of the primary and other considerations in the Direction, the Tribunal finds that the correct or preferable decision is to affirm the decision under review.
The Tribunal empathises with Mr Mailau’s position; it accepts the proposition that a treatment or rehabilitation program might be developed to divert him from a sustained pattern of criminal offending. But we consider that there are simply too many uncertainties about that possibility to put aside our strong apprehension that this pattern will reassert itself. We note that the Direction requires that decisions should not be delayed in order for rehabilitative courses to be undertaken (paragraph 13.1.2(1)(b)). The protection of the Australian community from further violence at his hands is of greater importance than offering Mr Mailau further opportunities for treatment or reform.
DECISION
Therefore, pursuant to s 43(1)(a) of the AAT Act, and for the reasons set out above, the Tribunal affirms the decision made by the Minister’s delegate on 13 February 2020 to not exercise the discretion in s 501CA(4) of the Act to revoke the original decision made under s 501(3A) to cancel Mr Mailau’s visa.

I certify that the preceding 287 (two hundred and eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO and Member William Frost.

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Associate
Dated: 28 May 2020

Date(s) of hearing: 28-29 April 2020; 6 May 2020

Solicitor for Mr Mailau: S Kikkert

Solicitors for the Minister: C Brinley, Clayton Utz

Date(s) of hearing:	28-29 April 2020; 6 May 2020
Solicitor for Mr Mailau:	S Kikkert
Solicitors for the Minister:	C Brinley, Clayton Utz