Petelo and Minister for Immigration and Border Protection (Migration)

Petelo and Minister for Immigration and Border Protection (Migration) [2017] AATA 1621 (28 September 2017)
Division:GENERAL DIVISION
File Number: 2016/5691
Re:Petelo Petelo
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:28 September 2017
Place:Sydney

The decision under review is affirmed.
.................................[sgd]..................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – prospect of rehabilitation – unacceptable risk of harm – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth) ss 501(3A), 501(6)(a), 501(7)(c), 501CA(4)
SECONDARY MATERIALS
Ministerial Direction No. 65 – Visa Refusal and Cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
28 September 2017

This is a decision under review made by a delegate of the Minister pursuant to section 501CA(4) of the Migration Act 1958 dated 28 September 2016, not to revoke an early decision to cancel the applicant, Mr Petelo’s class TY sub-class 444, special category temporary visa (‘the visa’).
BACKGROUND
Mr Petelo was born in 1985 in New Zealand, and he came to Australia in 1992 at the age of seven. His father is an Australian citizen. He has lived in Australia since then, apart from short spells in December 1994 and November 2003 in New Zealand. On his most recent entry to Australia, on 24 November 2003, he was granted the subject visa, namely a class TY subclass 444, special category temporary visa.
The applicant has a reasonably extensive criminal record, which is in the G documents.[1] His most recent and most serious conviction was on 7 August 2015 in the Penrith District Court for the offence of discharging a firearm with the intention to cause grievous bodily harm. He was sentenced to a full-time custodial sentence of 45 months, with a non-parole period of 24 months. He received a discounted 25% for pleading guilty, otherwise it would have been five years. The maximum penalty is 25 years for that offence.
[1] T-documents, pp 21-23
On 5 January 2016, a delegate of the Minister cancelled the applicant’s visa under section 501(3A) of the Act (‘the cancellation decision’). The applicant was sent a notice of visa cancellation, and that notice explained that the delegate was satisfied that the applicant did not pass the character test because the applicant had been sentenced to a term of imprisonment of 12 months or more, pursuant to section 501(6)(a) and section 501(7)(c) of the Act.
On 18 January 2016, the applicant made representations and sought revocation of the cancellation decision. He was sent an invitation in July 2016 to comment on a National Police Certificate dated 8 February 2016, which is in the documents before the Tribunal. The certificate recorded some 12 other court appearances involving 25 matters between 2004 and 2015. All of these matters were dealt with by way of fines and bonds. The discharge firearm offence was the only offence for which the applicant received a custodial sentence.
On 28 September 2016, a delegate of the Minister decided not to revoke the cancellation decision under section 501CA(4) of the Act. The delegate considered the representations and the matters required to be considered by section 501CA(4)(b) of the Act. The delegate concluded that the applicant represented an unacceptable risk of harm to the Australian community, and that this outweighed the interests of his children and any other considerations.
The delegate was, therefore, not satisfied that there was another reason why the cancellation should be revoked. On 24 October 2016, the applicant applied to the Tribunal for a review of the non-revocation decision. Under the heading “Reasons” for his application, he stated:
I am reformed. I’m no longer a threat to the Australian community, and have strong ties to this country, including my two children.
The applicant lodged a Statement of Facts, Issues and Contentions on 15 December 2016, and a number of witness statements as well. The matter was heard initially in March 2017 when the Applicant gave evidence. As the applicant wished to attempt to obtain further legal representation, the matter was then adjourned until late April 2017 to enable him to obtain such representation. The applicant did not obtain legal representation and the matter continued on 26 April 2017 to a further hearing where the applicant was assisted by his partner, Ms Larosse. As a result of some further information relevant to the matter becoming known in the course of final submissions, the matter was further adjourned to enable further psychiatric evidence to be put before the Tribunal which was done and the matter was listed for final hearing on 16 August.
LEGISLATION
This Tribunal in reviewing this matter is sitting in the shoes of the decision maker and after hearing all the evidence, has to decide whether it should change the decision of the decision maker, or affirm it.
There are a number of matters the Tribunal must look at according to the law. Firstly, section 501CA(4) provides that:
The Minister may revoke a visa cancellation decision made under section 501(3)(a), 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.
Character is not in dispute and both parties accept this. The applicant does not pass the character test because he was sentenced to 45 months imprisonment for discharging a firearm and wounding as a result of that discharge. As he has been sentenced to a term of imprisonment exceeding 12 months, and is therefore deemed to have a substantial criminal record, as that term is defined, at section 501(7), he cannot pass the character test.
The question for the Tribunal is, therefore, whether in exercising the discretion under section 501CA of the Act, the correct or preferable decision is whether there is another reason why that original decision should be revoked.
Ministerial Direction No. 65
The Tribunal must have regard, in exercising the discretion, to Ministerial Direction No. 65, which is, “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (‘the Direction’).
The principles set out in that direction make it clear, firstly, being able to 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.
Secondly, the Australian community expects that the Australian government can and should refuse entry to non-citizens if they commit serious crimes in Australia
Thirdly, a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community, should generally expect to be denied the privilege of coming to or to forfeit the privilege of staying in Australia. Fourthly, Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia. Paragraph 7 of the Direction requires a decision-maker to take into account the considerations in Part C of the Direction, in deciding whether to revoke a cancellation decision. These considerations are described as either primary considerations or other considerations.
Paragraph 13 of the Direction sets out the primary considerations as follows:
(a)firstly, the protection of the Australian community from criminal or other serious conduct;
(b)secondly, the best interests of minor children in Australia; and
(c)thirdly, the expectations of the Australian community.
Paragraph 14 of the Direction sets out the other considerations, as follows:
(a)firstly, international non-refoulement obligations;
(b)secondly, the nature, strength and duration of ties the person has to Australia,
(c)thirdly, the impact on Australia’s business interests;
(d)fourthly, the impact on victims; and
(e)fifthly, the extent of impediments, if removed.
Other considerations are generally to be given less weight than the primary considerations.
The Tribunal is required to consider whether there are any other reasons why the cancellation decision should be revoked, having regard to the principles, and also the primary and other considerations set out in this Direction.
The applicant’s criminal record
The Tribunal must look at what it was that the applicant did that landed him in jail, and also look at his record. In terms of his record, it is a reasonably substantial one. He first offended when he was a juvenile, aged 17. His offences are detailed as follows:
·On 8 July 2002, at the Penrith Local Court, he appeared for an offence of “never licensed, drive a vehicle on the road”. The matter was dismissed pursuant to section 10 of the Crimes Act 1900 (NSW), the offence was proved, however no conviction was recorded. This is about the lowest penalty one can get. This was a minor offence.
·At the Penrith Local Court, on 21 September 2004, he was fined $150 for “use offensive language in or near a public school”, fined $150 for “behaving in an offensive manner in or near a public place or school” and fined $600 for resisting or hindering police in the execution of their duty.
·On 28 April 2006, in the Penrith Local Court, he was fined $200 and disqualified from driving for six months for a mid-range PCA.
·At the Blacktown Local Court, on 29 June 2009, he was before the court for driving whilst his licence was expired (two counts). Both of these were dismissed pursuant to section 10.
·At the Mount Druitt Local Court, on 24 September 2009, he was fined $400 for not complying with the conditions of his licence and fined $100 for not complying in relation to P plates.
·On 29 September 2011, at Mount Druitt Local Court, he was fined $400 for using offensive language in or near a public place or school.
·At Penrith Local Court, on 23 January 2013, he was fined $530 for using an uninsured motor vehicle, and fined $530 for using an unregistered motor vehicle. He was also fined $1,000 for driving whilst his licence had expired.
·At Mount Druitt Local Court, on 11 February 2013, he was fined $250 on one count of failing to appear in accordance with a bail undertaking, and $550 on another count of failing to appear in accordance with a bail undertaking. He was also placed on a section 9 good behaviour bond, for 12 months, for contravening a prohibition/restriction in an apprehended violence order (‘AVO’), and also for stalking, intimidating, and intending fear or physical/mental harm in relation to an AVO.
·On 6 May 2013, he was fined $400 for contravening a prohibition or restriction in his AVO (domestic).
·On 10 July 2013, at the Bankstown Local Court, he was fined $100, for failure to appear in accordance with a bail undertaking. The Applicant was fined $100 and put on a section 9 good behaviour bond for two years, for destroying or damaging property greater than $2,000 but less than $5,000. He was given a section 10A conviction and no other penalty for failing to appear in accordance with a bail undertaking, and was fined $100 and put on a section 9 good behaviour bond, for two years, for assault occasioning actual bodily harm. He was further fined $100 and placed on a section 9 good behaviour bond for two years, for “stalk/intimidate, intend fear, physical, et cetera, harm (personal)”.
·On 8 August 2013, at the Mount Druitt Local Court, he was fined $1,000 and disqualified from driving for three years, commencing on 8 August 2013, and concluding on 7 August 2013, for driving whilst his licence had expired.
·On 10 February 2014, at the Mount Druitt Local Court, he was fined $150 for not wearing a helmet whilst riding a motor bike.
·At the Penrith District Court, on 7 August 2015, for the offence of discharging a firearm with intent to cause grievous bodily harm. He was imprisoned for a term of 45 months, commencing on 21 January 2014, and concluding on 20 October 2017, with a non-parole period with conditions for 24 months, commencing on 21 January 2014 and concluding on 20 January 2016.
The Firearm offence
As has been indicated earlier, he has not been in the community since then because upon his release from imprisonment, he was put in detention as a result of the matters I have referred to earlier. Because of that term of imprisonment, he failed the character test and, accordingly, steps then commenced to effectively deport him from Australia.
The sentencing comments are always relevant in these matters. In the District Court, Penrith on Friday, 7 August 2015, His Honour Justice Delaney stated:
On 20 January 2014, the offender in company with Mr Lucas went to a hotel-motel premises then occupied by the victim and several other persons. Mr Lucas drove the car to the premises. In the boot thereof was a bag containing a pump-action rifle. They entered the premises. The offender carried the bag –
the offender being of course the applicant –
and once inside removed a black 37 centimetre sawn-off pump-action rifle therefrom. He was seated on a bed near the victim, and apparently said to him that he would give him a point of ice if the victim, Mr Curry, let him shoot him. He then asked the victim which leg and the victim, thinking he was joking, replied, “this one,” pointing to his left leg.The offender leaned forward and, being about two to three metres away from the victim, aimed the gun and shot the victim in the lower portion of his left leg. Thereafter, the victim left the premises (presumably without the ice) and was subsequently treated at hospital having suffered a serious leg wound which left him with a significant disability.
The Crown also suggested that the victim might have suffered a psychological trauma of a permanent nature, but the medical reports on this aspect on the victim’s disability were relatively inconclusive and, as I’ll indicate shortly, the Crown did not establish this aspect of his continuing disability beyond reasonable doubt.
The offender and Lucas left the premises in Lucas’s car without giving the victim any assistance. The victim reported the matter to the police and his statement was subsequently tendered by the offender. Later on, the police stopped Lucas and checked his mobile phone, confirming that he had been with the offender in room 32 of the Quality Inn when the shooting occurred.
The offender was subsequently arrested and said he had no knowledge of the offence, and apparently gave the police some form of alibi and claimed that he did not know the victim. On 3 February 2014, the police received some information about the firearm. They attended premises at Llandilo and searched bushland, locating a zipper bag and found a black coloured .22 shortened pump-action rifle.
The offender’s DNA was on the gun. The agreed facts do not mention that anyone in this affair, including the offender, was affected by ice at the time of the offence, although it is quite obvious that ice was the topic of conversation immediately before the shooting. The agreed facts leave much to be desired.
Firstly, although police recovered the gun, I was not given any details about its make or the type of ammunition it used other than calibre, whether it had a magazine, whether the user had to have any skill to be able to load and fire it and, in particular, whether the offender had ever fired a gun in his life before.
There was no evidence that the police sought to locate the bullet which had gone through the victim’s leg as there was an entry and exit wound, and there was no evidence that any investigations had been directed specifically at the hotel room itself, in particular to find the bullet. The agreed facts in my opinion provided a less than seamless narrative of the events.
Exhibit 3 tendered by the offender was a transcript of the evidence with the victim and the police at Nepean Hospital. The victim said he had been shot by a person called Pete (the offender) and it occurred at the Grey Gums Hotel, room 32, with other persons present. He thought that the shooting occurred either at 8 or 8.30 and he was asked whether or not there was any conversation with the offender, who the interrogator referred to as Mick.
The victim said that the conversation was that, in his terms, “Fucken just asked me which fucken leg I wanted to get shot in.” He was then asked whether or not he knew any reason why the offender should shoot him, and he said no. There is nothing in that transcript that mentions a point of ice being used as part of that conversation. The facts which were tendered of course are the facts upon which the court has to sentence the offender. It does so supplemented by the evidence that was tendered about the event by not only the transcript, the interview that I referred to with Mr Curry, the victim, but also the evidence that was given by the offender at the sentencing hearing over several days. I will return to that part of the evidence in due course, because in that evidence a great deal was said about the use of ice and the effect of ice.
The Crown submitted that the maximum penalty of 25 years showed the serious nature of the offence and served as a basis for comparison between this and the worst possible case. There is no standard non-parole period. The Crown submitted that the injury was substantial because the victim had undergone surgical treatment on the left lower leg and had to have a split-thickness skin graft applied.
He was in hospital from 20 January to 22 February and after he was discharged had daily visits from the community nurse and had physiotherapy treatment. The Crown submitted that the offending was towards the upper end of the range of seriousness and bore a high degree of moral culpability. The Crown submitted that the offender’s record of previous convictions for serious personal violence did bar him from any leniency.
It was submitted that there should be proper recognition for general and specific deterrence and protection of society. I agree with the submission that there should be recognition for general and specific deterrence and the protection of society from the use of guns, particularly those which are of the type used here, a shortened firearm.
The Crown submitted that because the offender was on conditional liberty, this was an aggravating feature. There was no doubt that at the relevant time the offender was on conditional liberty because he was the subject of s 9 bonds imposed on him previously. I was not asked to deal with any of the bonds in the course of these proceedings.
On the question of remorse, the Crown submitted that any expression of remorse would receive less weight as there was no initial acceptance of responsibility for the shooting. It is relevant to note that the offender did not give any statement to the police at the time and the agreed facts do not mention that he was at the time of the shooting in any way affected by ice, alcohol or any other drug.
As I said, the offender gave evidence on two occasions and documents were tendered on his behalf from a potential employer and also from psychologist Dr Borenstein, who he saw whilst he was in gaol. His report is dated 17 January 2015.
It is relevant that I should state here the impression of the offender that I gained during the course of his evidence. I formed the impression that the offender was not always reliable or credible in his evidence. He was not cross-examined in relation to all of the issues that he raised, but there were many aspects of his evidence on which he appeared to be uncertain and which indicated to me that there are problems about his recollection.
He called no witnesses and tendered no documents that would serve to suggest or corroborate that he was indeed drug-affected as he asserted years before this event occurred. He claimed that his current girlfriend of two and a half years did not know he was a regular user of ice, and that he had hidden it away from her.
The clinical psychologist, Mr Borenstein, in his report of 17 January 2012, which was obtained over a year after he went into custody, which was on 21 January 2014, referred to his history. The offender told the psychologist that he was under the influence of ice leading up to and at the time of the offence. He claimed that he had been using this drug regularly over a period of some three or four years before the offence and he was taking a ball day (I understand this is 3.5 grams).
He claimed that he worked as a steel fixer and spent the bulk of his earnings on ice. There was no evidence tendered that he had employment as a steel fixer or the amount of dollars that he earned if so employed. No bank records or any other documents were tendered to support his allegation about his spending habits. The only evidence that was tendered in relation to steel fixing was the letter that was provided to which I have already made reference from Norsvan Roofing and Guttering addressed to the presiding magistrate dated 18 March 2014 which says:“This letter is to confirm that I Dale Norsvan owner and director and Norsvan Metal Roofing and Guttering have offered Mr Peter Petelo employment on a casual and part-time basis if he is granted bail. Mr Petelo will be employed as a general hand/labourer with Norsvan Roofing working approximately four to five days per week. We look forward to Mr Petelo joining our team.”
The offender told the psychologist at the time of the offence he was out of his head on ice, and had not slept for four days beforehand. This does not appear in the agreed facts. He said it was only after he had gone to gaol that he became clean. He claimed that he was now attending Narcotics Anonymous but that many of the programs he wished to access he could not do so because he had not been finally sentenced.
Giving more details about his ice habit, he told the psychologist that he was first introduced to ice about four years ago, coinciding with the break-up with his ex-girlfriend with whom he had two boys aged three and four. He told the psychologist about the interaction between his parents and these children. His parents were not called to give evidence at the sentencing hearing and there was no evidence that they were not available.
He told the psychologist that he became acutely depressed after the break-up, and that his former partner had prevented him and/or his parents from seeing the children. He was also asked about alcohol. He told the psychologist that he was also a heavy user of alcohol and that his earlier relationship ended because of his drinking. No medical or other evidence was tendered to support this allegation.
The psychologist recorded he was born in New Zealand his father worked as a labourer, his mother a process worker. They came to Australia in 1991. He claimed his father drank a lot and was a violent alcoholic. His father was not called. His mother was not called and no one was called to support the allegations about substance abuse and alleged dysfunctional background.
The offender told the psychologist he enjoyed contact with an extended family members, such as uncles and cousins, who were in Australia; None of these were called. The offender said that he finished Year 12 at Mount Druitt High School and completed the HSC and had a Certificate 3 in Office administration. No documents were tendered to support that assertion.
SUBMISSIONS ON BEHALF OF THE OFFENDER
Ms Ghabriel who appeared for and with the offender made extensive submissions which I have summarised and I hope will not do her an injustice by doing so as she referred to many authorities of relevance. Ms Ghabriel submitted that the period of time the offender had spent in custody was sufficient punishment having regard to the seriousness of the offence, and that it would be now appropriate to have him assessed for an ICO.
In my opinion this would be an inappropriate course to take and I reject the submission. The offence is so severe that the only sentence in my opinion is a sentence of fulltime custody and although he has been in custody now since January 2014 he should serve a further period in custody to that which he has already served. In my opinion there is no basis for the leniency of an ICO particularly in view of his less than helpful criminal history which does not assist him on leniency.
A submission was made about the extent of the injury that the victim had suffered. Of course the question of the extent of injury is a relevant factor in relation to the sentencing proceedings. Ms Ghabriel submitted at the outset of this hearing that there were matters in the Crown bundle which required the Court to look very carefully to determine the extent of the admissibility of medical evidence about the injuries that the victim had suffered.
Suffice to say that in the end although a Victim Impact Statement was prepared, the Crown did not rely on that Victim Impact Statement and the matter was adjourned to allow some further medical evidence to be brought before the Court. It is relevant that I should refer to some of that medical evidence in summary to indicate the findings that I make in relation to the extent of any injury.
Firstly in the original Crown bundle there were documents from the victim’s treating specialist and photographs which showed the extent of skin graft needed as a result of the injury. Firstly the treatment which was given to the victim required him to remain in hospital for a period of time. The evidence of the medical practitioner who originally looked after him, namely Dr Clothier, was this in summary, that the victim had gone to the Nepean Hospital Emergency Department, he was distressed with pain. Two holes were noted in his left lower leg, one on the lateral side, a quarter of the way down from the knee and a second on the medial side one third of the way down the calf. His calf was hard, swollen and tender. There was a small amount of painful movement in the toes. He received intravenous morphine and ketamines for analgesia, tetanus immunisation and other drugs.
An x-ray of the left tibula and fibular reported no acute fractures although there was soft tissue swelling in the proximal third and small densities projected over the injury consistent with small foreign bodies.
He was admitted under the care of orthopaedic surgeon Dr Gupta with what was described as a compartment syndrome. He underwent fasciotomy of his left lower leg on 21 January 2014. The operation report showed lateral anterior and deep posterior compartment muscles were pink and contractile. He required further operative washout debridement and bootlace approximations of medial and lateral fasciotomy wounds and further washout and debridement and primary closure of anterolateral compartments and bootlace approximation of posterior wounds on 27 January 2014. A split thickness skin graft was performed under the plastic surgery team on 28 January 2014. He was ultimately discharged home on 2 February and community nursing was arranged. He also underwent physiotherapy and in the initial Crown bundle was a report from the physiotherapist Jemma Lekkas, senior physiotherapist. The report said that he initially presented on 25 February and had been seen for a period of two months including manual therapies to reduce muscle tightness and joint stiffness. He was given home based exercises and some hydrotherapy to improve muscle strength and endurance.
The physiotherapy report went on to say:
“As a result of the above findings Arron is finding function tasks such as walking and standing very difficult. He currently has a tolerance of a quarter of an hour of walking before the onset of pain and discomfort while prolonged standing is only achieved by reducing the amount of weight bearing through the left leg, this of course increased a load on the right leg.”
The report was dated 10 June 2014 and said they proposed increased hydrotherapy sessions as well as additional physiotherapy and said,
“Both physiotherapy and exercise physiology will look at reversing the above clinical findings with an aim to return Arron back to full function hopefully including a return to work.”
In the subsequent reports which were tendered after the first adjournment there was another report from that physiotherapist dated 10 March 2015 which said that the victim had made some great improvements since the last review but still required intervention to improve his current level of function including strengthening for his core and pelvic stabilisers, continued gait retraining and endurance and continued motor coordination retraining.” The physiotherapist said she hoped that the victim would continue to improve and stated that she had given some details to his general practitioner.
The matter of some controversy during the course of the conduct of this case were the physiotherapy records. The rehabilitation goal that was referred to was to increase Mr Curry’s functional capacity and reduce his pain levels. The recommendations remained as they had been that there should be some further steps taken to improve his condition.
From this evidence I am satisfied he had a serious injury to his left lower leg which required operative treatment and skin grafting.
I am satisfied that he has a disability which continues and requires some attention from time to time. The main problem was that the Crown on the second occasion when the matter was adjourned, sought to tender against the objection of Ms Ghabriel the report of a psychologist, Anthony Gunn, dated 13 March 2015.
This report had been requested by the Director of Public Prosecutions and was based on ten counselling sessions through the Victims Services where Mr Curry had been referred, after being shot on 20 January.
The report referred to in broad terms, an assertion that Mr Curry met the criteria under DSM 5 for post-traumatic stress disorder and referred to the his asserted psychological disability as a consequence thereof, as well what ongoing treatment was required. Ms Ghabriel objected to this report which I allowed in over objection, on the basis that the report failed to state the facts upon which the opinion was based.
Of course it is necessary for the court to remind itself of the views expressed by the High Court in Dashreef v Hawcher and I am satisfied that the way in which the report was expressed, was not sufficient as I mentioned earlier in these reasons to establish beyond reasonable doubt as the Crown has to do, that the victim has the condition asserted in the report. I take no notice of that in relation to the question of severity of the consequences of the offence.
I now return briefly to the evidence that was given by the offender. He gave evidence about the manner in which he brought the gun to the unit. There was a great deal of toing and froing about whether or not he had said “I brought the gun in to show it off,” or, “I brought the gun in to show it off.”
Whatever the situation was, a great deal of evidence seemed to have been omitted from the agreed facts about various aspects of what happened before the time that he got the gun, where he got the gun from, apart from the boot and various other things. Very little turns upon whether or not he brought it in to show it off or to show off, although as I said, that was a matter that was the subject of intense cross-examination by not only the parties but I asked a few questions about that, myself.
I listened as I said, carefully to his evidence much of which was led from him by Ms Ghabriel, without objection. His evidence about his drug habit extending back to the period he referred to, would have been much more persuasive had corroborative evidence been led, as I have already mentioned. But the mere fact that not every aspect of his evidence was challenged, does not mean that he has to be accepted as either reliable or truthful. As I said, I found it difficult to accept all his evidence as either totally reliable or truthful. I accept that he made reference to remorse for his actions. This assertion must in my opinion, be looked at with some scepticism having regard to the approach that he took to the matter when originally confronted by the police. Nevertheless, the plea of guilty may be evidence of some remorse, but in the offender’s case, I consider his remorse is at a lower level.
He pleaded guilty in the Local Court and is entitled to a twenty-five per cent discount. Although he was involved with a Mr Lucas who apparently was to be sentenced at some stage or other, I have never been informed what happened to Mr Lucas so I cannot take that into account.

Ms Gabriel then stated:
Your Honour actually sentenced him.
There is some conversation in relation to that, and they get some instructions in relation to that. It appears Mr Lucas got a suspended sentence. His Honour went on to say:
I am informed I must have dealt with Mr Lucas back in February. I have forgotten about that and he got a bond under s 12. Thank you Ms Ghabriel.
Ms Ghabriel stated:
You’re welcome your Honour. Unfortunately I can’t assist with the terms of it your Honour.
His Honour then stated:
I remind myself of the purposes for which a court may impose a sentence on the offender. These are the matters that are set out in s 3A of the Crimes (Sentencing Procedure) Act. It would be noted that those particular provisions of course set up some tension between each other, as of course it is necessary not only to punish the offender for the crime but also recognise the need for rehabilitation and other matters of importance in this regard.
The offender was born in 1985 and can no longer be called a young person who was incapable of making a choice between complying with the law and criminal activity. I accept the Crown’s submission that general and specific deterrence is important in this case, having regard to the presence of a shortened firearm and the use of that weapon in an enclosed area. I am persuaded that this was a crime of considerable significance.
Ms Ghabriel submitted that I should find special circumstances. I am mindful of what was said in relation to that in Collier v The Queen [2012] NSW GCA 2013. I have decided there are some factors which do not overlap with other matters which could justify special circumstances. As I said, I have referred to some of the submissions which were made by Ms Ghabriel in summary, hoping that I do not do disservice to the extensive submissions that she made, which were directed significantly to the degree of seriousness of these matters and the circumstances in which they were carried out. In the end, there had not been any mention of the extent of the offender’s Ice addiction.
It was probably overcome by the ultimate evidence that he gave in relation to this matter. I have reached the conclusion, although not without some reservation that he probably was, because of the bizarre circumstances of the events described in the fact, if nothing else, subject to problems with Ice before and probably contemporaneous with the events of this day. Of course such matters do not excuse his actions but they explain some of the problems which he has outlined and may also explain why much of the material which I referred to has not been provided. It was indeed not provided in evidence at this sentencing hearing.
As I said section 3A provides some indication of what the court has to consider. First of all, it has to recognise the harm done to the victim of the crime and the community. As I said the use of a shortened firearm of the type here, is a very serious matter. I have denounced the conduct of the offender in doing so. Ms Ghabriel said he should be the subject of a finding. That he had real prospects of rehabilitation. Ms Ghabriel pointed to what he had done in prison and to the fact that he had a prospect of employment when released. She referred to his current family circumstances and said he had family support.
In this regard, I am satisfied that he does have prospects of rehabilitation but that rehabilitation requires him to have significant assistance on the question of overcoming his addiction, despite the steps that he has taken in prison. It is all too easy to fall back into the same problem. As far as recidivism is concerned, it is almost impossible to know precisely what will happen about this until we know what happens with his Ice addiction and if it has in fact been overcome.
However I think it is unlikely that he will offend again in the manner in which this charge has been framed. I have already referred to the evidence about his remorse and I do not restate that. There is some evidence of remorse although as I said, I approach that at a lower level of acceptance than otherwise.
Ms Ghabriel submitted that I should take on board the findings of the psychologist in relation to his mental and other health. The report of Dr Borenstein to which I have referred in some detail already, was compiled while he was in prison and Dr Borenstein said he would require some assistance with his resolve to ensure he does not return to his previous patterns of behaviour, particularly with regards substance abuse.
He said that the offender impressed him as motivated to ensure that that occurred and it was to him that he expressed remorse and shame. As far as Dr Borenstein is concerned he said:
“There was no suggestion of serious psychiatric disorder, e.g. psychosis. Thoughts for content and process were deemed to be normal, and there was no evidence of perceptual disorder, delusions or hallucinations”
et cetera.
He said the offender presented as cognitively intact.
Sadly, the effect of illicit drugs in our community has the effect of causing people to act in a way in which perhaps is outside that which they would otherwise do. But, the evidence does show that Mr Petelo has a history of some violence, which cannot be overlooked.
I am satisfied, pursuant to s 5 that no penalty other than a full time of imprisonment is appropriate. I consider that a sentence after trial in the circumstances of this case would be six years. In my opinion, this is an appropriate sentence, having regard to my consideration of the maximum penalty which applies to this offence.
He is entitled to a discount of twenty-five per cent for the plea of guilty that was entered. This leaves a head sentence of forty-five months and without special circumstances, his non-parole period would be thirty months. I find special circumstances and declare that the non-parole period be a period of twenty-four months.
Accordingly I propose, subject to you checking the dates of commencement and expiration of these sentences, that the head sentence be forty-five months, with a non-parole period of twenty-four months, which would make his earliest release date 19 January 2016, I think. Is that right?
His Honour then went on to say:
Petelo Petelo, I convict you of one count of discharge of firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900. I sentence you to imprisonment, head sentence forty-five months with a non-parole period of twenty-four months. You will be eligible for release on 20 January 2016.
The law in relation to what is said in Court and accepted by the Court during proceedings that result in convictions for offences has to be taken at its face value. If, during a Tribunal proceeding, there is any variation or additions or disputes in relation to evidence given before a Court where a conviction was recorded, then unless some very strong evidence is presented to the Tribunal that would refute statements made and accepted by a Court, what is before a Court in the way of statements and especially statements by magistrates and judges as to findings of fact, are to be taken at face value.
There has to be very strong evidence to justify going behind what was said in a Court, and in this particular matter, as is usual in these matters, nothing was provided by way of convincing evidence to refute what was actually before the Court. It is important to make this comment.
EVIDENCE
A number of witnesses gave evidence. A number of statements were also before the Tribunal in the T-documents namely statements by Ms Larosse, his partner,[2] his parents,[3] Sarah Walker,[4] who stayed with him and his partner for about two years, the Reverend Sioni Eli[5] and the Reverend Mifalfal who gave evidence, on Wednesday 26 April.[6] Reverend Mifalfal indicated he had only just met the applicant, so he was not particularly helpful, but had been briefed by the Reverend Eli, who stated that the applicant was a very good church-goer. Reverend Mifalfal knew the applicant’s family.
[2] T12, pp 68.
[3] T13, pp 70.
[4] T14, pp 71
[5] T15, pp 72.
[6] Page 145 of the transcript – Wednesday 26 April 2017
The applicant’s aunt, Lega Lapana, and also Aliimau Tobi, his cousin (who is a few years older than him and who grew up with him) did not provide any statements to the Tribunal, but gave oral evidence before the Tribunal.
The applicant said that when he was a young man, he certainly had trouble with alcohol, and that was responsible for a number of convictions, especially in relation to resist arrest and some of those earlier convictions. He had since given up alcohol because that was a problem in relation to his relationship with the mother of his eldest child, his daughter.
The applicant also had various issues with the mother of his two boys which led to AVOs, and those are documented in his record. It appears that she got jealous of his parents seeing the boys and basically opted to side with her family against him. It seemed to be a rather difficult relationship and it appeared she did make it hard for him to see his boys. The AVOs resulted in relation to problems in that relationship.
There was further evidence in relation to the final AVOs, which involved Ms Larosse, and considerable evidence was given in relation to that, by Ms Larosse herself, and she was cross-examined by the representative of the respondent in relation to that.
It seemed that it may not have been Ms Larosse that called the police, and that it might have been the neighbours in relation to the last breach. Indeed, it seemed that the police may have put the AVO on the applicant. There was some confusion in the evidence in relation to the actual assault and Ms Larosse seemed to indicate that there were no cuts or abrasions, and it was not actually an assault occasioning actual bodily harm. It was unclear exactly what happened. Ms Larosse indicated that the assault started from a wrestle, and that the applicant and Ms Larosse would often wrestle
It also appeared from the evidence that they would have arguments on a not infrequent basis.
The evidence in relation to these offences is somewhat unclear and all the Tribunal has to go on are the penalties imposed by the courts for the offences.
The applicant has given evidence that he attended some programs in jail. He explained that it was impossible for him, whilst he was on remand, to engage in certain programs, and further evidence was provided by the respondent in relation to what programs he went to and what appointments he missed. I accept that it was often difficult to attend and engage in programs whilst on remand, and that is a fairly common occurrence. I will detail what appointments he attended and did not attend in terms of those programs.
He indicated that he certainly wanted to apologise to the victim he had shot. He said on a number of occasions in his evidence that he was quite contrite about what he did.
The evidence is very vague as to exactly what had happened in relation to the shooting. The applicant was adamant that he was on ice at the time and he indicated this to the District Court. He further indicated to the Court and also to this Tribunal that he had been tested in jail and was now clean.
He explained the situation whereby he had been punished in prison for a couple of minor transgressions involving illegal substances by stating that he had picked up some papers that had some substance on them which tested positive (there were two observations made of him testing positive in jail).
He said that he had given up alcohol, had now taken a much more robust approach to overcoming problems that he had and realising that he needed help in overcoming potential drug problems. He seemed quite confident that because he had given up alcohol and because jail had been an eye-opener to him, that he would remain free of using drugs again.
Furthermore, the applicant detailed what amounted to a very good work history. It is clear, and there is nothing to indicate he was doing anything other than telling the truth in relation to his work history that he has continued to be in regular employment since he left school and was even employed on a part time basis while he was still at school. He is a steel fixer by trade and it seemed during the District Court proceedings, while he was in custody, there was work available should he be released.
The Tribunal accepts that were he to be released, he would readily find employment.
The evidence given by his partner indicated that the applicant had been with her for three years prior to the shooting. She gave evidence that the relationship had been an argumentative one at times but confirmed that she did not know that he was on ice at the time of the shooting. This was something he indicated he kept from her too. All Ms Larosse could say in relation to this issue was that for about the last eight months prior to the shooting, he was getting a little bit testier.[7]
[7] pp 125 of Transcript – Wednesday 26 April 2017
In answer to questions by the representative for the respondent:
Ms Larosse: “…he had started to change altogether, say in the last maybe year – eight months before”
Ms Gawidziel: He’d already got locked up?‑‑‑
Ms Larosse: Yes. But, like, it just – as time got on it was just like, he got more and more extreme.”
Ms Gawidziel: “In what way?‑‑‑
Ms Larosse: Just like more and more things would, like, more trivial things would anger him that didn’t used to bother him. Just not himself. Just not happy like he was before. Just – I don’t know, just – ‑ ‑“
Ms Larosse seemed to indicate that apart from the last eight months before he went to jail, there had been nothing problematic in the relationship. She was aware of some of the AVO matters in relation to his previous partner because he had great difficulty in seeing his children as a result of the problems with his former partner. The Tribunal accepts from the evidence that it would appear that Ms Larosse, who had been the closest person to the applicant for a period of about three years, knew nothing about any problems he had had in the past in terms of any previous offences.
The evidence from the Reverend Eli painted the picture of a man who was a regular church-goer, who used to go to church every Sunday and who was active in the church especially in terms of assisting young people as a youth leader. This evidence was corroborated by the applicant’s cousin, Mr Tavou, and his aunt, Mrs Lapana, who indicated, as did his parents, that he was a very good boy.
The evidence of family members including his parents was that the applicant did well at school and had no particular problems at school. They all stated he was a hard worker and because of his work with the younger members of the congregation, people would look up to him and everyone was very surprised when he went to jail.
In fact it appears no one in the family was aware of him being in any trouble with the law until such time as he went to jail. He did not discuss it with his mother, his father, his cousins, his aunt, or with the pastors at the church. No one had any knowledge about the fact that he had been in trouble with the law in any way.
His mother gave evidence that she understood him to be in jail for fighting, and that appears to be what his parents have told other people.
It appears that the applicant did not confide in any other people about any other issues he had. It must have been obvious that there were issues in relation to his previous relationships and certainly the AVOs relating to his former partner and the mother of his two boys, but apart from that, his family and friends were not aware of any other issues. Because he was a man with young children, it also seems that, quite understandably, his involvement with the church was a lot less after he became responsible for having a family and indeed working full time as well.
All of the relatives who gave evidence; parents, aunt, cousin and the church, indicated they would do whatever they possibly could to assist him were he to stay in the country, and they were there to support him.
There is nothing at all in the evidence given on behalf of the applicant and by the applicant, that would indicate that the Tribunal cannot fully rely on the findings made by the District Court and any conclusions the Tribunal might be able to make in looking at the penalties imposed by other Courts especially in relation to such matters as breaches of the AVOs.
In relation to all of his previous convictions except for the malicious wounding, the penalties do appear to be relatively minor in the scheme of things. There are however a significant number of prior offences including a number of breaches of AVOs and several offences which clearly involved alcohol abuse. It certainly cannot be said that the applicant was a law abiding citizen as he has been convicted of some 25 other offences since 2002 apart from the malicious wounding offence that landed him in prison.
Noting that he was on ice at the time, it is unclear exactly what occurred during that incident itself. It appears the applicant was not open with the police, and as previously stated, his explanation for his other crimes, especially the breaches of the AVO, does leave a lot to be desired. He certainly had issues with alcohol when he committed the street offences, and it does portray a problem at the time, of those offences, with his alcohol consumption.
I do note in recent months that he has made an effort to seek help with his problems, and perhaps he was not exactly diligent in seizing what opportunities were available to him whilst he was in custody. I note from the material provided to the Tribunal, that since his arrival at Villawood, the applicant has attended five mental health consultations[8] on 12 February 2016, 5 April 2016, 7 July 2016, 11 May 2017 and 18 May 2017. He had cancelled or not attended seven mental health consultations on 6 July 2016, 25 August 2016, 20 and 21 December 2016 respectively, 16 January 2017, 20 January 2017 and 19 May 2017.[9]
[8] Pages 10 to 16 of annexure A
[9] Pages 10 to 16 of annexure A
The applicant has been assessed twice in relation to his mental health. Both assessments indicated that he has nil thought disorder and nil perceptual disturbance and had a low risk of self-harm and suicidality. Also, I should note, the applicant indicated to the Tribunal on 16 August 2017, that he had on a couple of other occasions since May 2017, also seen the mental health counsellor. He said that after 19 May, there were two further mental health consultations and he indicated that he continues to see the counsellor.
It appears that up until very recently he has had a somewhat casual approach to his actual problems. There are no incidents of him seeking help prior to this. He indicated that prior to May 2017, he had only visited the doctor once, and that was in relation to getting some anti-depressants.
The Tribunal finds it strange that the applicant was able to hide his ice habit for some two to three years from his partner, and one is left with the impression that perhaps someone is being less than forthcoming in their evidence here. Furthermore, the Tribunal finds it strange that his cousins and his parents knew nothing about his offending till he went to jail for the shooting. This could be explained by the fact that some people are in the habit of not telling their family and friends if things go wrong. However, that said, it is still somewhat surprising that at no stage has he sought to talk to anyone about any of these issues, kept it all bottled up inside himself and not told them anything about what he was actually doing. He has not, it seems, confided in anyone about any of those matters, except, to an extent, his current partner, and then not fully by any means.
The respondent has indicated that these matters are serious and have elaborated on the various criteria, indicating that because of the seriousness of this matter and the fact that the applicant had serious offences before, should outweigh any other considerations, especially considerations which would favour him, namely the rights of his children to a father and the fact that he came to Australia at a very early age, namely when he was seven and the fact that the applicant has also been a good worker.

The respondent also raised in its submissions that the applicant has not given convincing explanations for a number of other disclosures or non-disclosures. Particularly, the respondent referred to the applicant putting in one of his forms coming back into Australia that he had never been in any trouble. He offered an explanation for that, thinking that the question meant he had never been to jail before, but the respondent submitted that that was not a convincing explanation and that he had a very good grasp of English.
I do not regard that as a convincing explanation either. It does concern me, and it does tend to take away from the otherwise very positive, optimistic assessment by Dr Borenstein.
Dr Borenstein saw the applicant on one occasion on 16 January 2015, and he indicated that he felt he was at a low risk of re-offending. He particularly stated that would be the case if he got and sought assistance once he was discharged.
The respondent indicated that little weight should be placed on Dr Borenstein’s evidence because Dr Borenstein only saw him once and did not have reference to any other notes. That is quite true as Dr Borenstein relied on what he was told. Nevertheless, the Tribunal knows that Dr Borenstein is a very experienced psychiatrist, and certainly his views are respected by this Tribunal. It is also true that he only saw the applicant once and relied upon what he was told by the applicant. His evidence was given in the District Court proceedings and His Honour has also made observations there which I do not cavil with and do not attempt to go behind in any way at all.
It does concern me that there were incidents where the applicant was less than forthcoming, for example saying he had never been in trouble when filling out the incoming passengers form, when clearly he had some not insubstantial matters which he had been convicted of, albeit not of the most serious kind. This guardedness detracts from the positive, optimistic assessment given by Dr Borenstein.
After considering all of the oral evidence from the applicant, his partner, his family, colleagues and friends, the Tribunal is still uncertain as to exactly what happened in relation to most of these offences. As previously stated, I can only consider the penalties imposed, and whilst they show a disregard and casual attitude to the law, they are clearly at the lower end of the scale in terms of serious conduct.
Nevertheless, there is a propensity to commit offences. There was an escalating scale of offences which ended up with the shooting which caused grievous bodily harm, which was a very serious offence indeed, and has been commented upon as such by the learned judge.
Looking at all the evidence as a whole, I did not find the applicant to be a convincing witness, and whether that is just because of something in his demeanour or, perhaps just an inability to express himself, or whether, he was trying to put a spin on the issues (and it is quite common for people to try to put the best spin possible when describing events) – but for whatever reason and I cannot quite put my finger on it, he was not a particularly convincing witness.
It is obvious that he is respected by his family and by his community, and there is no one who can criticise his very good work ethic. He certainly has had some unfortunate problems with his previous relationships, and that has led to problems in seeing his children, and to these AVOs being taken out, rightly or wrongly. The fact is, they were taken out and the fact is they have been breached. The trouble is that the applicant has breached them on a number of occasions and he has not also availed himself of the opportunity presented on many occasions to have the matters sorted out in the Family Court, despite being aware that that course was available to him. In fact, had he done so, we may not be here today, especially had he done so in relation to problems with access with his two boys; if he had done that earlier, a lot of the problems may simply not have occurred.
The law is clear, however, and we cannot go behind convictions and the evidence given in court. The applicant is stuck with it, and he has not led any evidence to the contrary which would persuade the Tribunal that there are some reasonably good explanations as to some of these matters.
CONSIDERATION
All things being considered, I do not think the evidence led by the applicant in relation to the reasons behind committing these offences, and especially the most serious offence, really advance his case much. The things which are in his favour are the issues in relation to his family, his children and his hard work ethic.
The Tribunal will now apply his circumstances to the law and the criteria starting with the primary considerations and the other five considerations.
The primary considerations
The protection of the Australian community
The first consideration is the protection of the Australian community against harm.
When looking at this, the Tribunal should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct on citizens. Further, there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
The Tribunal should give consideration to the nature and the seriousness of the conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
The nature and seriousness of the offences (clause 13.1.1(1)(c)) is reflected in the custodial sentences that have been imposed on him.
In Australia, incarceration is a matter of last resort. Indeed, Ms Ghabriel, on his behalf in the District Court, submitted that because the applicant had already spent significant time in custody, he should be released. That argument was rejected by the Court.
The fact that the applicant got a custodial sentence of 45 months with a non-parole period of 24 months is reflective of the gravity of his offending, and that was ably expressed by the learned judge.
The Tribunal must also look at the frequency of his offending and if there is any trend of increasing seriousness (clause 13.1.1(1)(d)). In addition to the offence of discharge a firearm intending to inflict grievous bodily harm, he does have other offences over a 10 year period which the Tribunal has already looked at above.
Also, as indicated, there have been a couple of minor offences too in relation to possessing drugs in prison, i.e. the traces of drugs on some papers. I do not necessarily accept the applicant’s explanations as to why that occurred either. I am simply uncertain as to exactly what happened there, however, there are two instances where he certainly did commit two further offences there and the penalties may be relatively minor there but, again, that is something to take into account. Against that are his attempts to at least get some assistance in prison, albeit on a reasonably haphazard basis because he seemed to have missed or cancelled as many counselling sessions as he has actually attended.
His history shows a pattern of disregard for the laws of Australia. The penalties for the other offences are not terribly serious; however, they are over a period of time. Apart from, the emotions that come in with breaching AVOs, especially when children are involved, the applicant committed offences which display a disregard for the rules of Australia. It might have been very different had he only committed one or two minor traffic offences. However, the 25 other offences he committed, whilst not the most serious, are nevertheless, of relevance and does indicate a continual disregard for Australian law.
Whether there is a trend in increasing seriousness is perhaps a relatively moot point in that there is a continuing series of offences. It appears that there has been a number of breaches of AVOs and that certainly indicates that the applicant has not learnt his lesson, but in terms of seriousness, there is only one really serious offence being the firearm offence.
There are some issues, too, in relation to the fact that he did not immediately confess to what he did, indicating he did not have any knowledge of the offence. His Honour’s impression that he was not always reliable or credible in his evidence is also of relevance here.
The cumulative effect of repeat offending has resulted in one custodial sentence. That is a matter that has to be taken into account, in addition to the various other offences. The applicant did have a criminal record when he was convicted of the firearm offence.
Another matter the Tribunal must look at is whether he has re-offended since being formally warned or since otherwise being made aware of the consequences of further offending, in terms of his migration status. There is no evidence before the Tribunal that he has ever been formally warned. He would not be because he had only ever been sentenced to jail once and that is for the firearm offence.
Another factor the Tribunal needs to look at is the risk of conduct being repeated. The Tribunal must have regard to the principle that the community’s tolerance of any future risk of harm becomes lower as the seriousness of potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious and any risk that it may be repeated may be unacceptable (clause 13.1.2(1)).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also look at the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The nature of the harm that might be faced by individuals is somewhat hard to determine here and would very much depend upon, whether, if released, how successful he would be at not being addicted to any drugs or to alcohol or anything of that sort, and it would depend on his likely rehabilitation. Other issues to take into account is simply looking at the evidence in total and determining where his explanations were or were not particularly satisfactory, and whether in fact he came across as a credible witness. As indicated earlier, there are some problems in terms of his evidence and I did not find him to be a convincing witness. This makes it somewhat difficult in terms of assessing the likelihood of him not engaging in further criminal or serious conduct, especially if things went wrong for him in his personal life in the future.
It certainly appeared that the applicant does have an anger problem, especially when he engages in substance abuse, and were he not successful in overcoming substance abuse, the very low risk of offending that Dr Borenstein found would become a much more significant risk of engaging in further potentially serious criminal conduct, and that is a factor that the Tribunal must also have regard to.
The fact that the applicant has had a series of bonds and fines for more minor matters too, indicates that his history does not give a great deal of confidence that he would not re-offend against the laws of Australia in the future.
The Tribunal is not confident that he would not relapse and re-offend, certainly if things went wrong. The evidence is simply not there.
The Tribunal appreciates that once a person is locked up, it is very difficult to display rehabilitation as this can only really occur when a person is in the community or the Tribunal has to go on is evidence of the person’s attitude, and evidence of what has occurred especially what steps the person has taken to overcome their problems during their incarceration and having due regard to their prior history.
One of the largely worrying aspects for the Tribunal is the fact that the applicant never really appears to have confided in anyone or talked to people about his problems and the fact that his close family and friends really knew very little about what he was doing or getting up to for a number of years, including his current partner. I think it would be very difficult hiding an ice habit which I have indicated earlier. These are the things that concern the Tribunal and weigh against any confidence the Tribunal might have that he would be a very low risk of re-offending.
Best interests of minor children in Australia affected by the decision
Another factor that needs to be looked at is the best interests of minor children in Australia. Whilst I appreciate the respondent’s submission that the applicant has not had much contact with his children that is not perhaps through any want of trying. It appears and the Tribunal accepts that he is very close to his children and wants to have contact with them. He appears to be very much want to be a family man.
Family is very important to him, and in terms of those particular criteria, even the respondent concedes that the best interests of the children would be for the cancellation of his visa to be revoked. I do not think there is any doubt about that. It is a question of degree, and despite the limited relationship, clearly it would be in the best interests of his children if the cancellation of the visa was revoked.
It appears that when he has had access, there are absolutely no indications of any issues between him and his children. He appears to be a loving father.
The applicant certainly had a relationship with his daughter, and one only needs to look at the statement of Sarah Walker in relation to that. Ms Walker speaks very highly of him and she has lived with him and his partner, it seems, for a two year period. This criteria weighs quite heavily in his favour.
Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while they are in Australia. He has breached that trust, he has done so repeatedly, and he has done it in a very serious way in relation to the firearm offences. As I said on one occasion during the hearing of this matter, the biggest problem that the applicant has is the firearm offence. That is a very significant problem, and I think the expectation of the Australian community, because of that one offence, would weigh strongly against revoking the cancellation decision. Simply because an illegal sawn-off firearm was used.
The Australian community is quite happy to give people a chance, or several chances, but it is prefixed by the fact that they do expect people to obey the law. They will tolerate one or two indiscretions, but when there is a very serious offence committed, the average Australian does not want that person to remain in Australia if there is choice. This criteria weighs against him.
Other Considerations
The Tribunal must, in this case, consider the five other considerations. They are not as important as the other considerations but the law is clear that each and all of these matters do have to be taken into consideration as a whole.
It is possible that if the other considerations are strong, they may potentially outweigh some of the primary considerations.
International Non-Refoulement Obligations
This is not a relevant consideration in this case.
The nature, strength and duration of his ties in Australia
The applicant has a daughter, two sons and now another child, who all reside in Australia. His partner also resides in Australia. She has a daughter who stays, it seems, with her mother. The applicant’s parents, who reside in Australia, are not particularly well. He does not have any brothers or sisters or siblings, and indeed his parents would be expected to rely on him. He came here as a seven year old and does not know any other country. I do not think he has any relatives, certainly no close relatives, in New Zealand.
The strength, nature and duration of his ties are very strong. Indeed, probably this is his strongest suit. As well as this, he has an excellent work ethic and has contributed to the Australian community through his work. It can be said in relation to his children that because of problems with previous partners, he has not seen as much of them as he would want to, but when it comes to strength, nature and duration of ties here, he has a very strong case.
Impact on Australian business interests
There is no impact on Australian business interests, which is the third criteria, and there is no evidence to suggest cancellation of his visa would have any impact in this area.
Impact on victims
Again, the respondent concedes there is no evidence relevant to this consideration. The victim certainly suffered, and may well continue to suffer, but there is no likelihood that the applicant would ever see the victim again or be so minded to do so, and so this is not a consideration there.
Extent of impediments if removed
There is no evidence that he suffers any health conditions. There would be no issues in relation to his access to public health systems, if removed to New Zealand. Indeed, New Zealand, if one has to go anywhere, is probably one of the better places in the world to actually go.
Looking at all of these factors, the biggest hurdle the applicant has to face is in relation to the firearm and sadly for him, the use of a modified illegal firearm and the resultant injuries suffered by the victim are fatal, in my view, to his case.
The serious nature of the offence and the expectations of the Australian community in this case do outweigh the other considerations, including the best interests of his children and family, and the very strong nature of ties he has in Australia. Shooting a person using a firearm, that is, with what appears to be a pump-action .22 sawn-off rifle, is very serious indeed. Had the applicant been jailed for some other offence, especially an offence not involving violence, then this may well have been a different story. If it had not been for the use of the firearm, he may well have been successful in this application.
As I stated earlier, the unsuccessful party can always appeal the decision of this Tribunal to the appellate court. Whilst at present the policy of the Australian Parliament is not to allow persons deported to ever return, that may change, and I for one certainly cannot see why someone in the applicant’s position, should he not re-offend in New Zealand for a reasonable period of, say five to ten years, should not be allowed back into Australia.
Deportation for life should only be for cases that are more serious than this, where it is obvious the person will continue, in all likelihood, to pose an ongoing, serious threat to the Australian community. Such people like terrorists and people who continually have been convicted of very serious offences such as murder, potential armed robbers, serial drug suppliers and the like.
The Tribunal is of the view that if a person, such as the applicant, can show he has rehabilitated, then this offence, while serious, should not permanently prevent him from ever returning. That said, that is a matter for the legislature and it is certainly something that I would recommend should be put before the authorities to consider. However, this is a matter for the future and that is not a matter the Tribunal has any control over. The Tribunal is bound to administer the law as it currently stands.
The Tribunal notes on the last occasion the applicant’s partner, when asked would she be accompanying him were he to be unsuccessful in his appeal, indicated she would not because of her other child, who, it appears, is in the care of her mother. That was not explored further and it is not for this Tribunal to delve into the current personal relationships between the applicant and his partner, but suffice to say that in many situations where a person is deported and has a partner, it is common for the partner to go too.
I note that, firstly, Ms Larosse did not expect such a question which she had no time to think about, and secondly, she may, understandably, have felt that if she said she would not go, that might have helped the applicant stay in Australia. It may well be, on further reflection, that she might wish to accompany him to New Zealand. If so, it simply appears to this Tribunal that it would certainly make any move for him easier.

This case also reinforces the need for long-term residents of Australia, usually persons who come from New Zealand or people who come with New Zealand, Samoan, Fijian, Tongan and UK citizenship, who are often children when they come, especially parents of children such as the applicant, to ensure that they do take out Australian citizenship as soon as possible. The Tribunal notes with satisfaction that many migration bodies now actively encourage this, and whilst not many people expect to be in situations like that which the applicant is in, that is, no parent is likely to think their child might end up in jail when they grow up, it does happen, and at least if a person is an Australian citizen, he or she is our problem and not some other country’s.
Recent events in Parliament have revealed the importance for people to check their status. I suppose, at least in the case of those Federal members, they are not facing deportation from Australia.
The only obvious advantage, in this sad situation, is the fact that New Zealand is a great country. No two countries are closer than Australia and New Zealand. It is also a country that is only located two hours away, and with ever-cheapening air fares, the options for the applicant to have his parents, children and cousins visit him, are promising. In fact, his cousin gave evidence indicating, when it was suggested to him, “If he were returned to New Zealand would you visit him?”, indicated that he would.
If anything else, it appears it is a very good time to get a job in New Zealand. Many Australians in fact go there by choice to work these days. Those are the advantages of moving to New Zealand.
DECISION
Taking all this into account, unfortunately for the applicant, the law and the intentions behind the law, as expressed in the statutes and as debated in the Federal Parliament, clearly in my view point to no other outcome, because of the use of this firearm, than removal from Australia and accordingly, it is the decision of this Tribunal that the decision under review is affirmed.

I certify that the preceding 122 (one hundred and twenty -two) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

.................................[sgd]...................................
Associate
Dated: 28 September 2017

Date(s) of hearing: 8-9 March, 26 April, 16 August and 1 September 2017

Advocate for the Applicant: Ms H Larosse

Respondent: In person

Solicitors for the Respondent: Ms K Gawidziel, Australian Government Solicitor

[2017] AATA 1621

28 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	8-9 March, 26 April, 16 August and 1 September 2017
Advocate for the Applicant:	Ms H Larosse
Respondent:	In person
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor