Motufoaki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Motufoaki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3719 (17 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3876
Re:Kau Junior Motufoaki
APPLICANT

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

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:17 September 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[sgd].................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – multiple convictions – violent offences – property offences – vehicle offences – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCFCA 185
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
17 September 2020
BACKGROUND

On 27 June 2020, Mr Motufoaki applied for review of a decision of 23 June 2020 not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (the Act).
Mr Motufoaki’s visa had been cancelled on 9 July 2019 while serving a term of imprisonment. He has a record of criminal offending including intentionally causing serious injury in 2006 for which he was convicted in 2007. He received a total effective sentence of three years in relation to this offending. Mr Motufoaki was placed in immigration detention in July 2019 following a short period of incarceration arising from offences committed in 2018. Mr Motufoaki lodged representations in support of a request for revocation of the mandatory cancellation decision.
Born in New Zealand in January 1988, Mr Motufoaki came to Australia with his immediate family in 1999 at the age of eleven. Nearly all of his immediate family still live in Australia as well as a large extended family, all being members of the Nieu community.
The Respondent lodged G-documents, Supplementary G-documents, and a Statement of Facts, Issues and Contentions (SFIC). During the hearing the Respondent produced an additional document being a letter from the Department of Immigration and Border Protection to Mr Motufoaki dated 4 July 2019, together with an enclosed form completed by the Applicant and responding to questions relating to establishing his immigration status in Australia.
Mr Motufoaki lodged a SFIC and a Reply to the Respondent’s SFIC, five short letters from close relatives and friends, a certificate of participation in weekly men’s group meetings, dated July 2020, a photograph with two young relatives, and his SFIC references extensive further documentation which are also attachments to the statement of reasons provided with the decision under review, including:
(a)statements of Mr Motufoaki (G4, pp 80-82);
(b)report of Ms Gina Cidoni, Consultant Psychologist, dated 2 October 2019 (G4 pp 83-87);
(c)statement of Mark Mahon, Senior Counsellor, dated 16 March 2020 (G4, p 88);
(d)Certificate of Completion, 24hr Drug & Alcohol Program, dated 26 June 2019 (G4, p89);
(e)Statements of Attainment in relation to a Certificate I and Certificate II in General Education for Adults dated January 2012 (G4, pp 91-92);
(f)Certificate II in Building & Construction (Carpentry) dated 11 November 2011 (G4, p 93);
(g)statement from close relatives and friends of Mr Motufoaki (G4, pp 96-101);
(h)Supporter Details Update form of ChildFund, undated (G4, pp 102-103).
The hearing was conducted over three days on 8, 9 and 10 September 2020. Mr Motufoaki was self-represented, but received assistance with the preparation of written submissions, and called a number of witnesses. The hearing did not occupy all of the three days but was extended due to adjournments granted in order to provide the best opportunity to locate and hear evidence from his witnesses. The Tribunal was ultimately unable to contact one of Mr Motufoaki’s witnesses, a friend now living in New Zealand.
LEGISLATION
Under s 501(3A) of the Act the Minister must cancel a person’s visa if the person does not pass the character test because they have a substantial criminal record and are serving a sentence of imprisonment. Subsection 501(6) of the Act defines certain circumstances in which a person is determined not to pass the character test. This includes under s 501(6)(a) on the basis of having a substantial criminal record, which is defined in s 501(7) to include when ‘the person has been sentenced to a term of imprisonment of 12 months or more’. Imprisonment is specifically defined in s 501(12) as including ‘any form of punitive detention in a facility or institution’.
A mandatory cancellation decision under s 501(3A) of the Act may be revoked under s 501CA(4) if, following representations from the person, the Minister is satisfied that either the person passes the character test, or that there is another reason why the cancellation decision should be revoked.
Direction No. 79, dated 20 December 2018 (the Direction), was issued pursuant to s 499(1) of the Act. It sets out Objectives, General Guidance, Principles and considerations that are to be applied, including in relation to decisions under s 501CA. Under s 499(2A) decision makers must comply with the Direction.
The Direction establishes the manner in which the legislative discretion is to be exercised taking into account specific considerations which are categorised as ‘primary’ and ‘other’. Both types of consideration may weigh either in favour of, or against, revocation of mandatory cancellation (paragraph 8(3)); they may also weigh neutrally. Primary considerations should generally be given greater weight than other considerations (paragraph 8(4)). One or more primary considerations may outweigh other primary considerations (paragraph 8(5)).
Part C of the Direction applies to decisions in respect of a request to revoke the mandatory cancellation of a non-citizen’s visa. Application of the considerations is to be informed by the principles set out in paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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 to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
HISTORY OF OFFENDING
I have reviewed and considered Mr Motufoaki’s record of offending as set out in the criminal history checks provided in the materials (G4, pp 22-28). His offending commenced in 2001 when Mr Motufoaki was a minor with numerous separate offences (principally robbery) over a five year period commencing when he was 13. Over 40 further offences are recorded from 2007 to 2019 across numerous categories. I note that a number of offences were subject to court outcomes in late 2019 while Mr Motufoaki was in immigration detention. I summarise here the range of his offending:
(a)Property offences – including robbery, theft, attempt to obtain property by deception, a number of offences relating to dealings with stolen goods;
(b)Vehicle offences – including drive while suspended, use unregistered motor vehicle, failure to stop on direction, fraudulent use of registrations;
(c)Drug offences – including possess cannabis and possess methylamphetamine;
(d)Weapon offences – including possess dangerous article in a public place, possess controlled weapon without excuse;
(e)Violent offending – including intentionally cause injury, intentionally cause serious injury, recklessly cause injury, assault with weapon;
(f)Breach offences – comprising commit indictable offence while on bail and contravention of community corrections order.
I have considered the police briefs included in the materials lodged with the Tribunal in relation to: three instances of theft of petrol from petrol stations which occurred in late 2018 and early 2019, one of which included a violence offence; the failure to stop offence which also occurred in early 2019; and an assault which occurred in 2009. I draw the following brief summary from material lodged with the Tribunal:
(a)On 15 April 2019, Mr Motufoaki served himself $20 worth of petrol and attempted to leave the petrol station when stopped by the attendant who placed his hands on the bonnet of the Applicant’s car. Mr Motufoaki got out of his car, produced a baseball bat from it and threatened the attendant and left. Mr Motufoaki was sentenced to two months’ imprisonment for assault with a weapon. The offending occurred when Mr Motufoaki was serving a community corrections order;
(b)On 7 February 2019, the Police informant was patrolling in pursuit of a search warrant and identified Mr Motufoaki driving in the vicinity of his home address. The informant activated lights and siren and after tuning a corner Mr Motufoaki accelerated to approximately 100 km/h in a 50 km/h zone and the informant ceased pursuit (conviction for this offence occurred while he was in immigration detention);
(c)On 20 August 2009, Mr Motufoaki became involved in a fight in a hotel toilet when a patron asked him to hurry up, and he punched the victim in the face. Mr Motufoaki received a suspended sentence of six months.
The primary source of information for Mr Motufoaki’s major offending is the sentencing remarks of the Judge of the County Court, dated 2 March 2007, when imposing the total effective sentence of three years in respect of two separate incidents in 2006. I summarise from the sentencing remarks:
(a)Mr Motufoaki made admissions to police in respect of robbery and intentionally causing injury offences on 7 March 2006, the maximum penalties for which are 15 years and 10 years respectively;
(b)Mr Motufoaki made a full confession with respect to an intentionally causing serious injury offence on 21 April 2006, the maximum penalty for which is 20 years’ imprisonment;
(c)The incidents both involved the same victim and although this was a matter of ‘random misfortune’ for the victim, it was treated as an aggravating feature of the serious injury offence;
(d)Pleas of guilty and early cooperation facilitated the interests of justice and led to a ‘significantly lesser sentence because of those factors’;
(e)In the first incident Mr Motufoaki met the victim at a hotel in the company of two slightly older co-offenders. The group of four left to smoke in a park and then, ‘as planned’, the victim was robbed and $200-300 stole from his wallet. The victim was assaulted and left unconscious, although his pulse was checked. Mr Motufoaki did not actively participate in the assault, but he was ‘acting in concert with those who did’;
(f)The second incident took place at a different hotel where Mr Motufoaki had been drinking for some hours after drinking elsewhere earlier. Mr Motufoaki attacked the victim ‘without any apparent reason’ as he sat by himself, giving different inconsistent accounts to police and a forensic psychologist, one that he recognised the victim as a man who had assaulted his cousin at an earlier time, and one that the victim had mocked him. Mr Motufoaki punched the victim without warning rendering him unconscious and continued the attack after being pulled away;
(g)The incident was a ‘sickening, wanton and vicious attack on a helpless man’, and Mr Motufoaki was ‘particularly drunk’ at the time;
(h)The separate incidents taken together were described as ‘very serious offences’ and despite being affected by alcohol, Mr Motufoaki’s moral culpability was still relevant, as was the need for deterrence of ‘unprovoked violence perpetrated by young men in drink’;
(i)Mr Motufoaki was bailed for this offence but breached bail conditions and was placed in remand;
(j)With respect to his background the sentencing judge noted that:
(i)Mr Motufoaki had difficulty in secondary school partly due to academic problems and partly due to truancy arising from associating with an anti-social peer group;
(ii)Worked only sporadically at a fast food outlet, a florist and in painting and plastering jobs with relatives, and had not worked since 2004;
(iii)Mr Motufoaki’s family was supportive but his mother had not been able to control his comings and goings, stating in evidence that ‘his friends come first to him’;
(iv)The serious injury offence was the first time Mr Motufoaki had engaged in violent offending;
(v)Mr Motufoaki had used alcohol since early teenage years, developing into a binge drinker, but had not engaged well with programs and counselling offered previously;
(k)Despite some poor results in psychological and psychometric testing Mr Motufoaki’s overall performance did not raise any issues of significance for sentencing purposes, and his long time Juvenile Justice worker who had worked with Mr Motufoaki for over two years stated in evidence that Mr Motufoaki appeared to function at a standard intellectual level;
(l)The sentencing considerations ‘deeply troubled’ the sentencing judge who noted:
(i)evidence was given as to Mr Motufoaki’s suitability for a Youth Training Centre’;
(ii)‘an individualised sustained psychological intervention inclusive of violence prevention’ was indicated by Mr Motufoaki’s testing;
(iii)Mr Motufoaki had behaved in an exemplary manner during remand and completed some rehabilitation programs and the judge accepted the evidence that programs suitable to his rehabilitation were ‘much more readily available in Youth Training Centre’;
(m)In determining the sentence, the judge took specific note of:
(i)the plea of guilty and cooperation;
(ii)personal history and circumstances including ‘marked dislocation’ at a vulnerable age;
(iii)Mr Motufoaki’s youth, including his desire to address his alcohol problem, good behaviour in remand and being vulnerable in an adult prison population;
(iv)a Youth Training Centre structure offers real prospects of advancing rehabilitation.
EVIDENCE
Applicant’s evidence
At the commencement of his evidence Mr Motufoaki confirmed the contents of his written submissions, to the extent (as was submitted by the Respondent’s representative) that they touched on matters of evidence.
He confirmed that his immediate family consists of three brothers, in addition to himself, an older sister and his mother and father. Mr Motufoaki stated that his sister lives in Auckland, but he has had no contact with her since his only visit back to New Zealand in 2004.
Mr Motufoaki stated that he had a good childhood both in Auckland and in Melbourne. He attended primary school in Auckland and undertook Year 6 and several years of high school in Australia. Mr Motufoaki stated he went on to complete two Certificate level courses at Box Hill TAFE.
Asked if he agreed that he had in fact experienced a difficult upbringing, Mr Motufoaki stated that ‘it was OK’ but that he also ‘went through a lot of things’ and was ‘put in hospital in 2004’ and since that things had gone downhill. Mr Motufoaki stated he was hospitalised following an assault at the hands of one of his brothers.
Mr Motufoaki stated he was homeless for about two years after the assault and moved from place to place. At around the age of 16 he began to drink and would drink every day, building up to a bottle of whisky a day. He ‘probably’ commenced using cannabis at the age of 21, and methamphetamines four years later. Mr Motufoaki’s cannabis use lasted several years and he smoked once or twice a week. He ceased regular cannabis use after his methamphetamine use started, and this became a daily habit through the years 2013-2019.
When taken through his criminal history Mr Motufoaki acknowledged all offences. He was, however, unable to recall the circumstances of a number of property offences, particularly early in his offending, and was also unable to recall his first court appearance.
Mr Motufoaki stated that in association with one or more of his court outcomes he had contact with a social worker or counsellor. He thought that his was related to drug and alcohol counselling and that this ‘helped me at the time’. He was referred to, and undertook, activities such as various outings, as well as attending classes on addiction and anger management.
With respect to the first assault offence in 2006 Mr Motufoaki stated:
(a)he together with some friends approached a man after he left the bar, his friends tried to assault the man and ‘I was there and got caught’;
(b)that he denied being part of the planning saying he just ‘followed along’ and when told the sentencing remarks described Mr Motufoaki as ‘acting in concert’ with his friends he replied that ‘it just happened’;
(c)he did not know that theft of cash was involved;
(d)he checked the man’s pulse after the assault and then didn’t want to get involved.
When asked if he also called an ambulance as described in his written submissions, Mr Motufoaki then said that he did this ‘as well’. Asked why this was left out of the sentencing remarks he stated that ‘a lot of things were left out’. He denied making this fact up.

With respect to the second assault in 2006, Mr Motufoaki stated that he was at a pub and he was approached by a person, they got into an argument and then a fight. It was put to Mr Motufoaki that the sentencing judge stated the offence occurred with no warning he replied ‘that’s what the Court said’. Mr Motufoaki then stated that the victim argued with him about the earlier assault.
It was put to Mr Motufoaki that he had given other accounts of the events being that the man had assaulted his cousin, and that the man had mocked him. Asked which of the different reasons was the correct version Mr Motufoaki stated that it ‘was mainly because I thought he’d assaulted my cousin’.
Mr Motufoaki described his time in the youth training facility as ‘good’ and he stated that he ‘did a lot of programs’ which were ‘pretty good’. He participated in off-site trips including mountain biking, a hi-ropes course with the police and a visit to the Police Academy to spend time with new recruits. Mr Motufoaki also undertook TAFE course qualifying in both forklift and bobcat driving. He stated that he also underwent drug and alcohol and anger management courses.
Mr Motufoaki stated that on release in 2008 he established himself in accommodation with the help of a social worker. He then moved in with a partner with whom he had a relationship between 2008-2013. After stating that he stopped using drugs and alcohol during the period of this relationship, Mr Motufoaki agreed that he committed an assault in the toilets of a hotel in August 2009. Asked about the circumstances he stated that he had asked to use the toilet ahead of others leading to a fight with the victim; ‘I approached him the wrong way and I ended up getting arrested’.
Mr Motufoaki stated that his relationship ended in 2013 and he moved back to live with his parents. He agreed that there followed a period of around five years where his offending ceased. Asked whether he could explain this Mr Motufoaki responded ‘probably because I was busy, working a lot’. He stated that from 2013 his use of cannabis was ‘random’ and use of methamphetamine was daily.
On New Year’s Eve 2015, Mr Motufoaki was the victim of a machete attack by one of his older brothers. He stated that he was unable to explain why the attack took place and that he was in the ‘wrong place at the wrong time’. He was hospitalised for nearly a week and stated that his recovery took almost four years. Mr Motufoaki suffered injuries to his right hand and left forearm and stated that he was able to use his arm now. However, he sometimes experiences shakes and also sharp pains in the hand. Mr Motufoaki stated that doctors have told him he may be at risk of early onset arthritis.
Mr Motufoaki stated that as a result of the injury he wasn’t able to control himself and fully rehabilitate. It caused him to experience flashbacks, although ‘not much right now’, and also nervousness and anxiety. The attack interrupted his plans to open a business as a courier driver and his New Year’s resolution to stop using drugs. With the help of a ‘business manager’, who he was unable to identify, Mr Motufoaki developed a business plan. However, after the attack he became very depressed and the business idea did not go ahead, and he continued to take drugs.
Mr Motufoaki accepted on questioning that this was not consistent with the assertion in his written submission that he abstained from methamphetamine in 2016. Nevertheless, he stated that he did cease drug taking for a period of possibly six months but then continued to use through until 2019. Mr Motufoaki stated he tried to find rehabilitation assistance in 2019 but had been unable to find this.
With reference to a number of offences committed during 2018, Mr Motufoaki stated that this occurred when Centrelink cut off his payments and the police confiscated his number plates. He accepted that five of the offences involved the theft of petrol and stated this was because he did not have any money. He also acknowledged theft of $750 worth of women’s make up. Mr Motufoaki also acknowledged theft and misuse of number plates but denied this was for the purpose of committing crime. He accepted that it prevented being pulled over by police given his own plates were confiscated.
This offending also included possession of a baseball bat and a flick knife, which Mr Motufoaki agreed had been found in his car when searched by police. The bat was for recreational purposes and he further stated that he liked to play baseball on the weekend with friends. The bat was part of a set in his car including a baseball bag, balls and gloves. He stated he had used the knife in the days leading up to its seizure for the purpose of cutting wires while working on his car.
With respect to offending in late 2018 involving theft of petrol and use of the baseball bat, Mr Motufoaki denied committing assault. He stated that the incident arose because his car ‘was on empty’ and the staff member at the service station ‘made a big deal out of $20 worth of petrol’. Mr Motufoaki stated that he offered to return to pay but the staff member ‘went crazy’ and hit and kicked his car. He stated that it was a mistake to pull the baseball bat out of the car. Asked whether he thought he was a victim in this incident Mr Motufoaki responded: ‘I don’t think I’m a victim; I don’t think he is a victim; it was just a bad situation’. Mr Motufoaki agreed that he should have been convicted for the theft of petrol but did not think he should have been convicted of assault.
Mr Motufoaki stated that he has a ‘very close’ relationship with two young children who the Tribunal will refer to as V and S and are the daughters of a cousin. Mr Motufoaki stated that he had babysat them, picked them up from school, and saw them on most weekends and on other family occasions. On further questioning Mr Motufoaki stated that the school pick up was incidental to a visit with his cousin. He also stated that he had not seen V and S since Easter 2019, and they had not had any contact since he was incarcerated.
Mr Motufoaki agreed that the girls are well looked after by their parents but confirmed he provided money to his cousin to help with bills in ‘2018-2019’. This was described as a ‘one-off sort of thing’, and then stated that he gave sums of $50 on occasions when he had money, four or five times. I asked Mr Motufoaki why he did this when he had had difficulty paying for petrol and he responded that he ‘would rather give them money than pay for petrol’. I asked Mr Motufoaki whether his cousin was unemployed and he responded that his cousin was working.
Mr Motufoaki stated that he had held a number of different jobs on and off since the early 2000s. He held customer service jobs at a kebab shop and at a florist, stating initially that each job lasted around one year and that he worked ‘every day’. I observed that in these years Mr Motufoaki was still of school age and he then stated that he performed these jobs ‘on the side’, on the weekends, and before and after school on a part-time basis.
Mr Motufoaki stated that he had also worked in painting and plastering around 2005, on and off, and confirmed the description of work in his written submission. His experience involved labouring jobs for a fencing business, plastering, handy man work and a car tinting business. Mr Motufoaki stated that he worked in warehousing between 2013-2015. He drove a forklift and performed pick and pack tasks and customer service.
If allowed to remain in Australian Mr Motufoaki said his immediate goal was to obtain work as a courier. He stated he was not able to work full time as a labourer because of his injured hand. In the longer-term Mr Motufoaki plans to establish an online fashion business selling pants and t-shirts.
As a member of the Niuean community Mr Motufoaki stated he was involved in a dance group performing the haka and other community events. He confirmed he was raised in the Mormon faith but had not attended church since the early 2000s, but there was a chance he might re-engage. He also confirmed that he had in the past made donations to two Australian charities; a diabetes foundation and ChildFund Australia, he thought.
Mr Motufoaki stated that he is not in contact with his two older brothers in Melbourne. He identified extended family in Australia numbering nearly thirty in all. His extended family would be very disappointed in him were he to return to New Zealand. Asked if they knew about his offending, he stated that some do, some don’t.
Mr Motufoaki agreed that he had named a number of friends in his written statement. He stated that they would be ‘very sad’ if he returned to New Zealand and very disappointed in him. Some of his friends are aware of his offending. Mr Motufoaki was not sure if his friends would stay in contact with him in New Zealand nor whether they would travel to visit him.
Mr Motufoaki confirmed his immediate family was his mother and father and a younger brother Travis. His mother preferred that he stay in Australia and would be very disappointed if he returned to New Zealand. His father and Travis would feel the same. Mr Motufoaki stated that he helps with the chores including shopping, cleaning, cooking and driving his father to medical appointments. He had previously driven his mother to work, but she now takes the bus to a job closer to home.
Mr Motufoaki stated that Travis appeared to be a slow learner at school and his problems were more mental than physical, but was unable to identify his brother’s disability. Mr Motufoaki thought his brother was on disability benefits. He helps him with a range of tasks including banking and speaking to Centrelink. Overall, he described his relationship with Travis as generally that of an older brother.
If he was to return to New Zealand, Mr Motufoaki stated that his mother was unlikely to visit due to work commitments but that his father and Travis might visit him. He would otherwise stay in touch by phone.
Mr Motufoaki was uncertain what city he might live in if he was returned to New Zealand. He stated that he has some extended family there but is not in contact with them. Mr Motufoaki stated that he last saw his older sister in New Zealand in 2004 and had not had any contact with her since then. He was not sure whether his parents had any contact with her. Asked whether he would ask friends or family for help if returned to New Zealand Mr Motufoaki stated ‘I would just try to help myself’. He stated that he would seek assistance for his drug and alcohol issues and psychological help.
Asked about aspects of his rehabilitation Mr Motufoaki confirmed he had attended the program ‘24hrs’. This involved sitting in a group and talking about his offending and learning how to go about in public. Mr Motufoaki stated that he spoke about the reasons for his offending which had been that he had a car and had been under the influence of drugs. He stated that he intended to start riding and stay at home more. Asked to explain the significance of the car Mr Motufoaki stated that it had given him the ability to get ‘into different situations because getting around was easy’. Mr Motufoaki agreed that a car was not part of all of his offending history, but considered that it was the reason for his recent offending.
Mr Motufoaki stated that he had learned about the impact of his drug taking and had learnt how to ‘change it up’ instead of doing drugs. He had received similar support in prison and on Christmas Island. This included also how to ‘minimise’ his behaviour and go about situations differently. He had spoken to a counsellor also ‘about my whole life, what I have been through, how things panned out; everything’.
When asked to consider causes of his past offending and risks for the future, Mr Motufoaki stated that having his number plates taken away made him offend. It was also a result of Centrelink cutting off his money and not being fit for work and so not having any money. Mr Motufoaki also stated that further drug use was a risk for re-offending, but he had a lot of time off drugs and did not think he would re-offend in the future. Mr Motufoaki stated that he has had time to assess everything and cannot afford to re-offend in the future. The chance of being deported has given him strong motivation not to re-offend.
Other evidence
Mr Motufoaki sought to call as witnesses all of the persons who had provided statements in support. In the case of two of these individuals, they had also provided statements for Mr Motufoaki’s representations in relation to revocation.
Nicholas Browne
Mr Browne confirmed the contents of his written statement and stated that he had known Mr Motufoaki for approximately five years. They met through a mutual friend and at the time lived close to each other. I set out here short extracts from his statement:
(a)‘At the time we met I was suffering from undiagnosed mental illness and [he] became a friend I could rely on at any time, even bringing me home cooked meals when I could not feed myself’;
(b)‘[he] is genuine and caring and would for [sic] anything for his family and friend’s’;
(c)‘He deserves a second chance in Australia and I believe he would be a asset to the community given this chance’.
Mr Browne stated that Mr Motufoaki had offered him ‘tremendous support’ and that he would visit with his brother ‘Visy’. The Applicant’s visits lifted his spirits, and he would drive Mr Browne at a time when he himself did not have a licence. He stated that the Applicant had been a ‘massive support’ and was a ‘genuine person’.
Since moving across town Mr Browne stated he stayed in contact with Mr Motufoaki via Facebook and phone calls. He was aware that the Applicant had spent time in prison and detention but did not visit him due to his family obligations and the distance to the interstate detention facilities.
Asked whether he was aware of Mr Motufoaki’s criminal offending Mr Browne answered ‘I suppose’, adding that he felt their relationship was on a different level; they ‘tip-toed’ around this part of the Applicant’s life. Mr Browne was not aware that Mr Motufoaki had a history alcohol and drug abuse and, in his experience, they had sometimes had a couple of beers together.
Mr Browne stated that he had recently spoken to Mr Motufoaki about his future and stated that he is a very determined person and has had two years to think about his life. He did not think the Applicant was a great risk of re-offending as he wants to start a business and stay away from people who might be a bad influence.
Doreen Motufoaki
Ms Motufoaki confirmed the contents of her written statement. Asked about her relationship with Mr Motufoaki she stated that he is a very good boy and a kind person. Her brother is Mr Motufoaki’s father and she stated that ‘he cries every day for him to come home’. As a child he was a quiet boy who helped his parents a lot. He attended church when young in New Zealand but not so much here.
When asked about Mr Motufoaki’s use of alcohol and drugs, Ms Motufoaki stated that she was not aware of him using illegal drugs or alcohol. She stated ‘I haven’t seen him’ as he always stayed with his parents. She was not aware of Mr Motufoaki’s history of criminal offending. Asked about the family’s use of alcohol she stated that Mr Motufoaki’s parents sometimes consumed alcohol but were not heavy drinkers.
Ms Motufoaki stated that should Mr Motufoaki be returned to New Zealand she did not know how this would affect her personally, but then stated that she would be ‘very sad’. She confirmed that his sister lives in New Zealand but stated that she looks after her kids. Ms Motufoaki stated she would visit her nephew if he returned to New Zealand.
Anthony White
Mr White confirmed that he had provided a written statement. He confirmed that he was the de facto partner of Ms Motufoaki and had known her and the family for 15 years. Mr White stated that he has a ‘great’ relationship with Mr Motufoaki and that he is ‘a good guy’.
If Mr Motufoaki were to be returned to New Zealand, he would miss him, as would all of his close family, ‘this is his home’. Mr White stated he does not know Mr Motufoaki’s sister in New Zealand. He stated that if he were going to New Zealand, he would visit Mr Motufoaki but he had never been. Mr White would keep in touch by phone.
Asked about Mr Motufoaki’s criminal offending, Mr White stated that he had only become aware about when Mr Motufoaki had been placed in immigration detention. The whole time he had known him he considered Mr Motufoaki to be ‘friendly, respectful and attentive to his family’. He described the knowledge of criminal offending to be ‘a head scratcher’. When Mr Motufoaki’s range of criminal offending was outlined to him Mr White stated ‘that shocks me’. He stated that this information did not change his view about the man that he knows and considered this process to be a ‘big kick in the pants’ for him.
Lei Manavese
Ms Manavese, the Applicant’s mother, stated that Mr Motufoaki was a ‘very good boy’ during his childhood. Asked further about his childhood she denied that anything bad had happened. On prompting she confirmed that he had in fact been attacked by a brother at the age of fourteen and stated that his brother used to beat him up. Ms Manavese denied that there had been any violence toward Mr Motufoaki by either parent. She also denied any alcohol abuse but stated that she would sometimes have a drink after work.
Ms Manavese stated that her son is ‘not a drinking person’. He used to drink sometimes with friends but ‘not a lot’. Asked about drug use she stated that she was not sure about that and ‘he is a good boy at home’. Ms Manavese stated that she was aware that he had a criminal record and when asked to elaborate replied ‘stealing things’. Asked to further elaborate she stated that ‘one time he beat up this boy and they put him in Malmsbury’.
Asked about what would happen if Mr Motufoaki were returned to the Australian community, she stated that he would live at home. She did not consider he would be a risk to the community because ‘he will learn a lesson this time’. They are very close and ‘that’s why I am so worried as we are the only family he has’.
If Mr Motufoaki was returned to New Zealand, Ms Manavese stated that the effect on her would be that there is no one there to support him. She also stated that both she and her husband would be sad if he left. When asked what the impact would be with respect to work around the house, she stated that Mr Motufoaki helps with chores and that all family members also do the chores.
Ms Manavese stated that she is the only one in the house that currently works. Her husband is not able to work due to gout but is not on any kind of benefits. Her son Travis is on the Disability Support Pension. She stated that he had a learning disability when young but was not able to name any specific condition. She stated that he goes out once a month to do some shopping. Ms Manavese agreed that Travis is obese but in terms of activities in general he is ‘alright’.
Asked about her son’s involvement in the community, Ms Manavese stated that the family used to attend community events but do not anymore because it is too far to travel. She stated that the last time they had attended a community event was ten years ago. She has not attended church for eight years and Mr Motufoaki had not attended for some ten years.
Ms Manavese travelled twice to New Zealand last year and when asked if she would visit her son she responded ‘no, I am not going to visit him, I want him to stay’. Ms Manavese went on to state that it is difficult to travel as she is the only one working.
Ms Manavese confirmed that Mr Motufoaki has a sister in New Zealand and stated that she thought they had remained in touch and had a good relationship. When asked if he could seek help from her in New Zealand, she stated that there are no issues with his sister but that they wouldn’t get along and she lives her own life.

I asked Ms Manavese about her other sons. She stated that Mr Motufoaki’s older brothers are not living with her and she does not know what is going on in their lives. Ms Manavese stated she has no contact with them and that one lives in St Kilda and she does not know where the other one lives.
Other material
Contact was not made during the hearing with one of Mr Motufoaki’s witnesses, despite several attempts to contact her in New Zealand and despite the Tribunal adjourning to reconvene on a third hearing day in order to accommodate her evidence. Her statement contains positive statements about Mr Motufoaki broadly consistent with the other statements before me. He is described as a ‘peacemaker’ who always does his best to keep those around him happy.
Mr Motufoaki’s father provided a statement in support of his son’s revocation request. It includes the following:
(a)‘… my son kau suffers from depression and stress which he battles everyday and he needs the support from his mum and dad an family’;
(b)‘My partner lei works very hard at work … and I am retired from work because I am to sick … and my other son travis has a disability which is long term’;
(c)‘My son kau helps our family a lot around the house …’.
Brigitte Rigby, a friend, also provided a statement in support of Mr Motufoaki’s revocation request and it states in part:
(a)‘… me and kau were seeing each other on a regular base’s since early 2018 until 2019 catching up for dinner and lunch and movies on the weekend but we are not in a relationship right now because of his absence’;
(b)‘… I can tell use their is a lot of potential for a relationship in the near future for us if he was to be released and that there is no rush for me and kau to take it to the next level but he knows that he has my full love and support …’.
Ms Cidoni’s report is a psychological evaluation conducted during a two-hour video conference on 2 October 2019. The report states that Ms Cidoni was provided with information relating to Mr Motufoaki’s ‘priors’, contravention of a community corrections order and matters stated by police informants in relation to offending, specifically in connection with offending in early 2019. It contains a relatively thorough analysis of Mr Motufoaki’s offending between 2001-2019. It also includes a personal history addressing childhood, education, work experience and health issues.
Ms Cidoni states in her report that, following the assault on New Year’s Eve 2015, Mr Motufoaki ‘was diagnosed with Post-Traumatic Stress Disorder (PTSD) and depression’ with no medication prescribed and no history of counselling. The report states that Mr Motufoaki consumed alcohol from age 16 and consumed heavily to age 18, was a cannabis user and a heavy user of methamphetamine from 2013, with a break and relapse in 2016.
Ms Cidoni records administering psychological tests and I summarise her findings:
(a)Brief Cognitive Status Exam with a score in the average range ‘not indicative of any global impairment of memory or cognitive function’;
(b)Symptom Checklist 90 – Revised and Psychiatric Diagnostic Screening Test with the following outcomes reported:
(i)moderate paranoid ideation and low mood;
(ii)anxiety symptoms including repeated unpleasant thoughts;
(iii)scales reflecting post-traumatic stress symptoms where he endorsed certain specific symptoms;
(iv)acknowledgment of a dependence problem and difficulties cutting down or limiting use.
In Ms Cidoni’s opinion, the impact of the attacks by his brothers had a severe psychological impact. Specifically, she makes the dual diagnosis of PTSD and stimulant use disorder (in enforced remission) in accordance with the DSM-V. She describes the interaction between these conditions, particularly aspects of impulse control and risk-taking behaviour. Mr Motufoaki expressed a desire to pursue therapeutic treatment upon release.
Mr Mahon’s report states that Mr Motufoaki was referred to his service while the Applicant was in immigration detention ‘to attend individual counselling for issues associated with past illicit substance abuse’. The date of referral or extent of counselling is not described. Mr Mahon states that ‘he tries to hide from violence although cultural expectations influence him to behave contrary to his true character’. The report states further:
Loyalty to his family impedes Kau’s potential to visualise complete change although he vehemently believes that detention has strongly motivated him to consider the consequences that led him to this situation.
CONSIDERATIONS
I will set out first Mr Motufoaki’s submission as he has raised matters that I consider need to be addressed when dealing with the preliminary issue, which is the character test.
Applicant’s submissions
Mr Motufoaki presented an opening statement at the hearing which I summarise here:
(a)it is unfair to be judged on actions from fourteen years ago and he wants the opportunity to work and change his life;
(b)he has developed a better ability to approach life and is a recovered addict and a victim of two incidents of domestic violence;
(c)Mr Motufoaki wants to return to Melbourne to help his parents and his brother who has a disability and the COVID risk is concerning;
(d)he is in need of intense medical care for arthritis, PTSD and depression;
(e)prison and detention have helped in his rehabilitation, he now understands the importance of his family and he loves them;
(f)this process should operate as a warning, he does not deny the past and takes full responsibility for his actions;
(g)if he re-offends his visa can be cancelled again.
Mr Motufoaki’s closing submissions were based upon his SFIC and he emphasised the following matters:
(a)the importance of protecting the Australian community from harm and that non-citizens should be law abiding, that he acknowledged his offending and ‘my life is here in Australia and this is a reason … to no longer offend’ (at [39]-[40]);
(b)he faces impediments on return to New Zealand including difficulty re-establishing himself after a long absence, returning during the COVID-19 pandemic, the need for psychological treatment and counselling, and practical and emotional hardship including difficulty coping without family support (at [98]-[100]);
(c)that he had successfully completed a Youth Supervision Order and ‘demonstrated exemplary behaviour whilst in prison and attempted every avenue to rehabilitate, with success in completing some rehabilitation’ (at [101]-[102]);
(d)the longest period of long-term detention was more than 14 years ago, and it ‘is an unconstitutional action if this were to be used against me today’, he takes ownership of his offending and addiction, and his behaviour in detention is how he will behave in the community (at [103]-[105]);
(e)the last 20 years did ‘not work out’ and he will devote the next twenty years to change and family.
Does Mr Motufoaki pass the character test?
As noted above, a mandatory visa cancellation may be revoked either if I am satisfied that Mr Motufoaki passes the character test, or that there is another reason why the cancellation decision should be revoked (s 501CA(4)(b)).
At the hearing it was submitted by the Respondent’s representative that Mr Motufoaki had been sentenced to a period of greater than 12 months detention which met the test in the Act of a substantial criminal record. This sentence was served in a Youth Training Centre, but on account of the definition of imprisonment contained in the Act (and referred to above), it was submitted that this punishment met the test. As noted above, the total effective sentence was in fact three years, and the period of detention commenced and concluded many years ago.
In his written submissions Mr Motufoaki submitted that he did not pass the character test. However, I will address here submissions and issues that arose at the hearing.
As seen above, Mr Motufoaki sought to argue that reliance on offending in the past was in some way unconstitutional, and otherwise unfair. This issue was the subject of discussion at the hearing, but the Respondent’s representative was unable to identify what legal issue might be involved. I confirmed with the Respondent’s representative that Mr Motufoaki was aged 18 at the time of that offending, and the selection of a Youth Training Centre option was at the discretion of the sentencing Judge in the County Court.
At the commencement of the hearing Mr Motufoaki made submissions with respect to being made to complete a questionnaire during his brief period of time in prison in 2019, prior to his transfer to immigration detention. Mr Motufoaki submitted that it was ‘unfair’ to be given this questionnaire, unaware that his visa could be cancelled. The Respondent undertook to identify this document which did not form part of the material already lodged with the Tribunal. Subsequently, the Respondent’s representative produced a letter addressed to Mr Motufoaki from the Character Liability Assessment Team of the Department of Home Affairs, dated 4 July 2019, together with a form completed by the Applicant of the same date.
Neither the letter nor form refer to the possibility of visa cancellation. The letter commences: ‘It has come to the attention of the Department of Home Affairs that you have been convicted of an offence. The Department wishes to clarify your immigration status in Australia’. It then asks for completion of a two-page form that seeks information around residency and citizenship.
Mr Motufoaki may be arguing that he should have received notice that there was a risk of mandatory cancellation. It may also be that he is arguing that it is a requirement of the legislation that his visa only be subject to mandatory cancellation at the time of the imprisonment which triggers the character test. As noted, the relevant offending in his case occurred in 2006 and his incarceration commenced in 2007. Mr Motufoaki was, however, in prison at the time of the visa cancellation, and remained there until transfer to immigration detention on 19 July 2019 (Applicant’s SFIC, at [20]).
I am unable to find in the legislation any support for the arguments raised by Mr Motufoaki, as I understand their potential relevance to the character test. There are occasions when warning notices are provided to persons about the potential future use of the mandatory cancellation provisions. This was not the case with Mr Motufoaki. I do not consider that Mr Motufoaki’s submissions bear upon the operation of the character test. Reference is made to warnings in paragraph 13.1.1(1)(h) of the Direction and I will consider his submissions in the context of the related consideration, being the nature and seriousness of his conduct.
Mandatory cancellation under s 501(3A) arises if, as here, there is a substantial criminal record, and I am satisfied that this is the case. It is a further requirement under s 501(3A)(b) that the person ‘is serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory’. These provisions are described in paragraph 13 of Part C of the Direction.
Neither the legislation nor the Direction provide specifically for a link between these two pre-requisite conditions. Accordingly, it is open to make the finding that Mr Motufoaki’s earlier substantial sentence satisfies the definition of substantial criminal record, and that he was serving a sentence at the time of the mandatory cancellation.
Accordingly, I find that Mr Motufoaki does not pass the character test and I must consider whether there is another reason why the mandatory cancellation decision should be revoked.
Primary considerations
Protection of the Australian community
Under this primary consideration I am required to give consideration to several factors which I summarise from paragraph 13.1(1) of the Direction:
(a)the Government’s commitment to protecting the Australian community from harm;
(b)remaining in Australia is a privilege conferred in the expectation that non-citizens are, or have been, law abiding, will respect important institutions, and will not harm individuals or the community;
(c)‘[m]andatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved’.
I am required to give consideration to the nature and seriousness of Mr Motufoaki’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct (paragraph 13.1(2)).
Nature and seriousness of conduct
Factors identified in the Direction for considering the nature and seriousness of Mr Motufoaki’s conduct include (paragraph 13.1.1(1)):
(a)The principle that … violent and/or sexual crimes are viewed very seriously …;
(d)… the sentence imposed by the courts 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 …;
(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 eb in the non-citizen’s favour) …
Mr Motufoaki has committed a number of violent offences. I note that the maximum sentence for the charge of cause serious injury arising from the second assault in 2006 is 20 years’ imprisonment. He was also convicted of acting in concert in relation to the first assault in 2006. The sentencing judge’s remarks reveal clearly the particular violence of the second attack, albeit an alcohol-fuelled assault. Mr Motufoaki performed violent acts again in 2009 and a violent act with a baseball bat in 2019.
At the hearing Mr Motufoaki sought to emphasise that he did not actively participate in the first assault in 2006. I am satisfied from the description of the incident in the sentencing remarks that Mr Motufoaki was part of a joint enterprise albeit that he did not strike any blows. I will return to his evidence about the incident when considering risk of re-offending.
I accept that violent offending only comprises a relatively small proportion of Mr Motufoaki’s much longer and wider record of offending. However there has been at least one incident of very serious violence. To the extent that Mr Motufoaki argued it was unfair that his older offending be taken into account, I will address this under the consideration risk to the Australian community.
Significantly, Mr Motufoaki has resorted to intimidating violence in the very recent past. The use of violence associated with theft of petrol is particularly concerning. I do not consider that there is a trend of increasing severity that plainly emerges from Mr Motufoaki’s criminal history. However, the quite recent use of violence in a different form appears to indicate, at the least, a continued lack of respect for others and a sense of entitlement with respect to meeting his personal needs.
Mr Motufoaki was sentenced to incarceration for three years for the 2006 offending. He was incarcerated for two months in respect of his most recent offending. There was also a sentence of six months, suspended, imposed for the 2009 assault. This offending occurred very soon after Mr Motufoaki had just completed his sentence of three years in a Youth Training Centre. Certainly, the three-year sentence for the serious injury incident appears to be at the lower end of the range for that type of offending. Mr Motufoaki has also had a range of non-custodial court outcomes including a community corrections order and fines.
However, equally importantly, his record demonstrates relatively high frequency of offending over an extended period of time. This in itself reveals a pattern of persistent lack of respect for the law and important institutions given the breach offences in his record. Mr Motufoaki has had the benefit of diverse sentencing options over the years but has not lived up to the opportunities offered by this range of court outcomes.
Mr Motufoaki submitted in his SFIC that his more serious offending occurred nearly ten years ago. I also note that there have been periods of no offending outside of Mr Motufoaki’s time in detention.
Mr Motufoaki noted in his written submission that much of his offending occurred while he was under the influence of drugs or alcohol. This is patently the case with the serious injury offending. I note that Ms Cidoni has diagnosed PTSD and alcohol dependence syndrome and drew a connection between the two conditions.
I am satisfied that Mr Motufoaki’s personal circumstances were well explored in respect of his principal offending and that this is reflected in having received a sentence at the lower end of the applicable range. I also note that his mental health issues arose at a later date and were not a factor in his earlier and more serious offending. Nonetheless, I also take account of the fact that Mr Motufoaki appears to have suffered from serious acts of violence against himself which have caused or at least contributed to dislocation in his personal development.
I discussed above in relation to the character test Mr Motufoaki’s submission arising from the July 2019 letter seeking information about his immigration status. This was not a warning in the form that those are typically provided. On its face it may not necessarily qualify as making Mr Motufoaki aware, in the terms of 13.1.1(1)(h) of the Direction, about the consequences of further offending given that it does not explicitly refer to the possibility of mandatory cancellation.
Whatever the implications of this step, and the actual substantive nature of Mr Motufoaki’s objection, he has not offended further after responding to the letter since he has been in prison and immigration detention at all relevant times. The Direction does not require a warning, and the absence of a warning is not to be considered in Mr Motufoaki’s favour.
In summary, I am satisfied that Mr Motufoaki has engaged in violent conduct that should be viewed very seriously. Moreover, he has continued to behave with violence in public and I consider the cumulative impact of his offending over time should be viewed quite seriously.
Risk to the Australian community
In considering the risk to the Australian community I am required to have consideration, cumulatively, to:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Mr Motufoaki has a long history of property offences, and a smaller, but not insignificant history of offences involving violence. His offending has been associated with drug and alcohol use. His most recent offending has involved quite brazen acts of theft in public places, as well as evading police and theft of number plates. He used a threat of violence in connection with one of the recent acts of theft.
I am satisfied that if Mr Motufoaki were to re-offend in similar ways that this would result in a risk of physical harm to individual members of the public, to the loss of property and the interference with personal liberties. Antisocial conduct of the kind he has been convicted of in the past is destructive of public order particularly when it involves public acts of violence and disobeying police. Indeed, such acts carry the possibility of putting the wider public at risk.

There are a number of factors arising from Mr Motufoaki’s background and offending history that are of particular relevance to consideration of the likelihood that he will re-offend. As noted, his offending has been associated with his long history of heavy alcohol use and his regular use of drugs, particularly methamphetamine. He has been diagnosed with a substance use disorder. This needs to be understood in the context of his family life and personal experiences including homelessness and violence at the hands of family members.
Mr Motufoaki has recently had the benefit of a period of enforced abstinence due to his detention, and to counselling support and related rehabilitative programs. The exact nature and duration of the work he has undertaken most recently is, however, not entirely clear from the material before me. Ms Cidoni recommended such engagement, and also ongoing psychological assistance, which also responds to her parallel diagnosis of PTSD. Mr Motufoaki has given evidence of his willingness to engage in further treatment and rehabilitation if he were to be released. It would appear that he has not had the benefit of psychological treatment in the past.
I note Mr Motufoaki has clearly expressed in his written submissions and in his evidence that he accepts responsibility for his offending and feels remorse. He has also identified positive social connections including the church. However I consider from his evidence at the hearing that the role of the church in his future is speculative at best, and cannot be considered as a strong factor in his favour, with respect to anticipating changed behaviour. I also take account of the fact Mr Motufoaki has been permitted to remain in the community in the past and has re-offended. He has also had the benefit of a Youth Training Centre program which appears to have been very comprehensive and which did not put an end to his offending. His current abstinence is also a result of his incarceration and his strength of personal motivation is yet to be tested in the community.
Mr Motufoaki also appears to strongly identify his past offending as being a result of his personal disadvantage. This is part of a wider pattern in his evidence at the hearing in which Mr Motufoaki demonstrated a tendency to minimise his past offending, including:
(a)in relation to the theft of petrol involving intimidating behaviour of the attendant, Mr Motufoaki sought to blame the attendant for acting unreasonably when he sought to depart without paying and this claim was not consistent with the written material before me;
(b)Mr Motufoaki has on a number of occasions explained a range of offending as being rooted in the confiscation of his number plates by the police, and at the hearing he stated that part of his plan to avoid further offending was to not have a car, thus preventing him from moving around freely and getting into ‘situations’;
(c)Mr Motufoaki explained some of his offending by reference to Centrelink cutting off benefits;
(d)Mr Motufoaki’s account of the assault and robbery offences in 2006 sought to play down his complicity in a manner inconsistent with the sentencing remarks, and he has included in written submissions and his evidence further exculpatory facts which were not evident from the sentencing remarks, and upon which I place little weight;
(e)the account given of the second attack in 2006 given at the hearing contained the same range of inconsistencies as described in the sentencing remarks, which were not accepted at that time as being representative of the objective evidence, suggesting that Mr Motufoaki has failed to seriously grasp the nature of his culpability.
It was quite apparent from the evidence at the hearing that witnesses were largely unaware of, in some cases, any of his offending and substance abuse, or in other cases, to its scope and range over time. That is, despite the almost resoundingly positive evidence that amounted to a strong character reference in Mr Motufoaki’s favour, these opinions were made without a full appreciation of Mr Motufoaki’s character and behaviour overall.
In this context, I note the observations in the statement of Mr Mahon, who is the only therapist to have had recent and, it seems, sustained contact with Mr Motufoaki. He stated that both family and cultural expectations appear to stand as impediments to Mr Motufoaki’s chances of thoroughgoing reform.
Mr Motufoaki submitted that he was at a low risk of re-offending. The Respondent’s representative submitted that this risk should be considered to be moderate. I do not have before me any independent forensic assessment that might assist in adopting an appropriate qualifier for the level of risk. My consideration of the evidence as a whole leads me to conclude that there is a real risk of Mr Motufoaki re-offending.
Summary
As noted, I consider Mr Motufoaki’s prior offending to be quite serious in nature, and I consider there to be a real risk that he may re-offend. On balance therefore I consider that this primary consideration weighs strongly against revocation.
Best interests of minor children affected by the decision
This primary consideration requires me to consider (at 13.2): whether revocation is in the best interests of a child who is a minor at the time the revocation decision is made; to consider children individually if there is more than one child, to the extent their interest may differ; and to consider, where relevant, factors including the following (and I summarise):
(a)the nature and duration of the relationship with less weight given to non-parental relationships, or limited meaningful contact;
(b)the likely effect of any separation taking into account the ability to maintain contact by other means;
(c)whether other persons fulfil a parental role.
Mr Motufoaki submitted that there are two minor children described in written submission as nieces, being V, aged 6, and S, aged 5. From evidence at the hearing it is apparent the children are those of one of Mr Motufoaki’s cousins.
In his written submissions, Mr Motufoaki asserted weekly contact with the girls and this was broadly sustained in his oral evidence. He gave examples of contact that included picking the girls up from school, although this appeared to be incidental to him spending time with his cousin and did not appear to be a matter of routine.
Mr Motufoaki gave evidence that he has provided funds – possibly totalling as much as $200 – to the girls’ parents to assist with costs of upbringing. I am prepared to accept this evidence at face value, albeit that he also stated that he preferred to provide money to the girls than pay for petrol. In any event, the evidence was that the children are well parented and there is no evidence that the money was needed on a regular basis in order to ensure their wellbeing.
I accept that there is some tangible evidence, a photograph, demonstrating the link held between the two girls and Mr Motufoaki. However, his evidence at the hearing was that he had not had contact with them during his most recent periods of incarceration. There is no direct evidence as to the affect separation from Mr Motufaku might have on V and S, but I accept there is likely to be, at the least, real fondness between them, and they would feel some impact.
Taking into account the factors arising in this consideration under the Direction, I am unable to identify anything particularly critical in the relationship between V and S and Mr Motufoaki. Nor do I consider it necessary to consider their interests separately. Accordingly, I can only ascribe slight weight to this consideration in favour of revocation.
Expectations of the Australian community
This consideration is framed as follows (13.3(1)):
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have regard to the Government’s views in this respect.
The Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCFCA 185 provides guidance applicable to this consideration (at [74]-[76] and [102]-[104]) which I summarise as follows: the expectation can be understood as a ’deemed’ expectation; an unfavourable character assessment would in most cases be considered as leading to visa cancellation; the more serious the offending the more it will count against an Applicant; I need to consider whether it is appropriate in the circumstances of the case whether the expectation result in this outcome. I note the language of this paragraph of the Direction is that it ‘may be appropriate’ not to revoke the mandatory cancellation and that, fundamentally, I am not invited in this consideration to undertake an exercise in identifying what community expectations might be.
Mr Motufoaki’s offending has included very serious forms of offending. It has spanned a wide range of anti-social conduct and has included episodes of violence in public. His offending has included incidences of breach of non-custodial outcomes, and in one instance in recent years Mr Motufoaki has evaded police in the exercise of their duties. I remarked above on the fact that Mr Motufoaki appears not to have come to fully acknowledge his own culpability.
Mr Motufoaki’s conduct has, as noted, not only been contrary to public order, it also reflects a sense of entitlement. It is to Mr Motufoaki’s credit that his witnesses spoke so positively about his underlying character. This character has, it seems, not always been on display to the general public.
I have already found that there is a real risk of Mr Motufoaki reoffending. I consider that this risk is of offending of the kind already displayed to date, being crimes of violence and/or crimes that put both individuals or the public at large at risk physically, and that puts property and public order at risk.
It was submitted on the Respondent’s behalf that this consideration should weigh heavily against non-revocation. I consider that the real risk of reoffending taken together with the nature and duration of prior offending supports a finding that this primary consideration weighs strongly against revocation.
Other considerations
Paragraph 14(1) of the Direction requires me to consider at least five other considerations, where relevant. I am not aware from the evidence or material before me that any unspecified factor arises for consideration.
International non-refoulement obligations
While a submission appears under this subheading in Mr Motufoaki’s submission in reply to the Respondent’s SFIC, I do not consider that any of the substantive submissions in this matter, nor the evidence, give rise to any relevant consideration in respect to non-refoulement.
Strength, nature and duration of ties
Under this consideration I am required, with reference to the principles in paragraph 6.3, to have regard to a range of factors including (14.2(1)):
(a)how long Mr Motufoaki has resided in Australia including whether he arrived as a child, affording less weight to this consideration where offending began soon after arrival, and affording more weight to the time he has spent contributing positively to the Australian community;
(b)the strength, duration and nature of family and social links with Australian citizens, permanent residents and/or those with an indefinite right to remain here, including the effect of non-revocation on immediate family members in Australia (and who meet the preceding residency requirements).
Mr Motufoaki arrived in Australia aged 11 and has resided here continuously since 1999; a period of over twenty years. Of this time Mr Motufoaki has spent four and a half years in detention of different forms and the evidence indicates periods without offending. His offending commenced as a minor within two years of arrival in Australia albeit that his early offending comprised relatively low level offences recording no conviction.
The evidence demonstrates that Mr Motufoaki has held down a range of different forms of employment in different roles. At the time of his sentencing in the County Court it was described as sporadic, yet at the hearing Mr Motufoaki sought to characterise his work during his school years as relatively significant, being before and after school and on weekends. More importantly, Mr Motufoaki has attained a number of relevant trade qualifications and as an adult has worked in related employment both in casual and full-time roles for some years. I accept his written submission that this work record amounts to some nine years. His work appears to have been sufficiently creditable for Mr Motufoaki to have been preparing to open a subcontracting courier business, possibly working for his warehousing employer.
The evidence demonstrates that nearly all of Mr Motufoaki’s immediate family and a very large extended family group are all resident in Australia. I do not have specific evidence of the residency status of this entire group, however I accept that his immediate family have relevant residency rights in the terms of the Direction. I accept from the material lodged with the Tribunal that Mr Motufoaki’s extended family consists at least in part of Australian citizens.
The evidence indicates that Mr Motufoaki has a supportive group of friends and family and it is testimony to these ties that they provided statements and gave oral evidence. Overall, the evidence demonstrates that this wider group would miss Mr Motufoaki in the event of a non-revocation decision. No more specific or material impact was identified. Mr Motufoaki’s evidence with respect to community engagement was not sustained by, for example, the evidence of his mother. However, I accept that Mr Motufoaki is part of a large family network, and possibly a broader community beyond this.
Mr Motufoaki sought to argue that he had made and would continue to make a positive contribution to family life. While his mother’s evidence somewhat undercut the stress that he sought to put on help around the house, I accept that Mr Motufoaki is likely to be the most able-bodied member of the family. However, his family has had to manage for the past nearly 18 months without him. Further, while the evidence supports Mr Motufoaki’s written submissions as to his brother’s disability, there was no substantive evidence forthcoming as to his brother suffering any particular disadvantage in the event of non-revocation. I accept that, given the absence from the family group of Mr Motufoaki’s older brothers, his own presence would be missed by his younger brother at home.
It was submitted on the Respondent’s behalf that some weight in favour of revocation should be given to this consideration. No particular weighting was sought in Mr Motufoaki’s submissions but significant emphasis was placed on the factors arising.
I note that the written statement of Brigitte Rigby submitted with Mr Motufoaki’s request for reconsideration of mandatory cancellation refers to the possibility that they may form or re-form a personal relationship if he were permitted to remain in Australia. No submission, written or oral, was made on this material and I received no evidence in respect of this issue. Accordingly, I afford it no weight in my considerations.
In summary I note that Mr Motufoaki engaged in what might be considered petty juvenile criminal behaviour relatively soon after arrival in Australia. This should not weigh particularly heavily against his interests. It would also seem to be somewhat counterbalanced by his record of work which should be understood as a positive contribution to the Australian community. Further, Mr Motufoaki has very strong family and social networks. I am not able to find that his wider family and social network would suffer any particular impact from a non-revocation decision.
I consider that Mr Motufoaki’s immediate family would suffer appreciably more from a non-revocation decision than these other networks. Overall, I consider the impact to be primarily emotional. I do accept that Mr Motufoaki would also make some practical contribution to the lives of his immediate family. On balance, therefore, I consider that this consideration weighs slightly in favour of revocation.
Impact on Australian business interests
There are no submissions or evidence in this matter going to this consideration and accordingly it weighs neutrally.
Impact on victims
Written submissions were made by Mr Motufoaki under this consideration however the content of those submissions fails to raise any relevant substantive material. I understand this consideration to address the impact on victims of Mr Motufoaki’s offending of a decision not to revoke. There is no such evidence before me and therefore this consideration weighs neutrally.
Extent of impediments if removed
Paragraph 14.5(1) requires me to consider the extent of any impediments Mr Motufoaki may face if removed to New Zealand, in establishing and maintaining ‘basic living standards (in the context of what is generally available to other citizens of that country)’ and taking into account:
(a)Mr Motufoaki’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in New Zealand.
There are no substantial language or cultural barriers arising in Mr Motufoaki’s case. I also consider that his age does not present any impediment to relocating to the country of his birth. However, the evidence indicates that Mr Motufoaki would face very limited immediate social support should he return to New Zealand. There appears to be additional extended family in New Zealand. He has one close relative only, his sister in Auckland, and I accept his evidence that he has not seen her for many years. His evidence as to the weakness of his current links to her was not fully substantiated by Mr Motufoaki’s mother, but it does appear they may not be close. I do not put great weight on the evidence of Mr Motufoaki’s mother and aunt that his sister is too busy raising her children to help her brother. His own evidence in any event was that he wished to be independent.
Some attention was paid during the hearing to Mr Motufoaki’s health and medical needs. I accept that he has some ongoing issues arising from the New Year’s Eve attack, although the evidence as to any physical incapacity he has is limited. More significant I consider are Mr Motufoaki’s other conditions being diagnosed PTSD and stimulant abuse disorder. His own view as to his present medical needs suggested they are not acute but it may not be appropriate to place too much weight on this perspective. Treatment has been recommended and he has committed to pursuing help.
I consider that Mr Motufoaki would be able to obtain adequate treatment for any physical and psychological issues, as well as other therapeutic treatment for his substance abuse condition should he return to New Zealand.
I have no specific evidence before me as to the possible impact on Mr Motufoaki’s employability arising from any of his conditions. I note his own evidence was that he has a longer-term goal to start an online business. However, I accept that in the much shorter-term Mr Motufoaki would need to find employment. I consider the evidence to demonstrate that he possesses skills and experience suitable to gain employment so as to maintain a basic standard of living.
It was submitted on the Respondent’s behalf that limited weight should be given to this consideration. Mr Motufoaki has emphasised the significant hardship he would face on return to New Zealand. On balance, and taking into account the relatively basic lifestyle benchmark established in the Direction, I consider that this consideration weighs only slightly in favour of revocation.
CONCLUSION

Mr Motufoaki has expressed his willingness to change and emphasised that he has reflected on his offending, and takes responsibility for it. His close friends and family have stressed that Mr Motufoaki has many good qualities and deserves a chance for a new start. The concern that arises from the evidence overall is whether Mr Motufoaki has earned the opportunity he seeks, and whether he has the capacity to achieve and sustain the critical changes of behaviour that are indicated. In short, there is a real and troubling contrast between the manner in which Mr Motufoaki appears to present in private, and the manner he sometimes conducts himself in public and, particularly, when affected by alcohol and drugs.
Family and cultural expectations have arguably played a role in his offending in the past, yet his family network is likely to be one of his major supports should he remain in Australia. Mr Motufoaki also exhibited limited insight into his past conduct as shown by his tendency in evidence to minimise his culpability for several quite serious offences. That is, notwithstanding progress that he claimed to have made with some aspects of rehabilitation, Mr Motufoaki appears not to understand the impact of his criminal conduct, despite written submissions to this effect. Through significantly downplaying his most recent offending it appears that he may not really accept his own culpability.
Equally, there is no doubt that Mr Motufoaki has experienced more than one damaging attack at the hands of close family. I accept that these incidents seem to have had a material impact on his life. I also have to take account of the fact that Mr Motufoaki has repeatedly been afforded opportunities to reform and has on a number of occasions failed to comply with associated orders. He has not properly addressed his addictions, and has offended on a large number of occasions.
Of the primary considerations I have found that the protection of the Australian community and the expectations of the Australian community weigh strongly against revocation, and the interests of minor children weighs minimally in favour of revocation. Of the other considerations I have found that strength, nature and duration of ties and extent of impediments if removed weigh slightly in favour of revocation.
The process of assessing considerations is not a mathematical one, yet the Direction does talk in terms of considerations weighing for and against revocation. I have arrived at findings in these terms. The Direction states that primary considerations should generally be given greater weight than other considerations (paragraph 8(4)). Here I consider that the primary considerations protection of the Australian community and expectations of the Australian community are strongly weighted against revocation and, together, outweigh the bests interests of minor children and the other considerations that weigh slightly in favour of revocation. Accordingly, I consider that I am not able to identify another reason why Mr Motufoaki’s mandatory visa cancellation should be revoked.
The Tribunal affirms the decision under review.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the written reasons for the decision herein of Dr Stewart Fenwick, Senior Member

......................[sgd]..................................................
Associate
Dated: 17 September 2020

Date of hearing: 8, 9 and 10 September 2020

Applicant:
By video conference

Advocate for the Respondent: Keith Sypott

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 3719

17 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	8, 9 and 10 September 2020
Applicant:	By video conference
Advocate for the Respondent:	Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor