PKJT and Minister for Immigration and Border Protection (Migration)

PKJT and Minister for Immigration and Border Protection (Migration) [2017] AATA 2178 (14 November 2017)
Division:GENERAL DIVISION
File Number: 2017/4694
Re:PKJT
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:14 November 2017
Place:Sydney

The decision under review, being the decision of the delegate of the Minister dated 31 July 2017 not to revoke an earlier decision to cancel the applicant’s visa, is set aside and remitted for reconsideration on the following recommendations:
(a)a delegate of the Minister is to provide the applicant with a formal warning of his current immigration status following the decision of this Tribunal; and
(b)a delegate of the Minister is to determine a period of time of which the applicant’s behaviour and re-offending will be monitored, so that should the applicant be convicted with any further offences of violence and/or dishonesty in the future, his visa will be cancelled.
...................................[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 set aside and substituted.
Legislation
Migration Act 1958 (Cth) ss 501(3A), 501CA(4), 501(7)
Cases
Mahanasu v Minister for Immigration and Citizenship [2010] AATA 457
Petelo v Minister for Immigration and Border Protection [2017] AATA 1621
Sabharwal and Minister for Immigration and Border Protection [2016] AATA 940
Secondary Materials
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
14 November 2017
This is an application to have the Tribunal review a decision under by a delegate of the Minister for Immigration and Border Protection dated 31 July 2017 not to revoke an earlier decision to cancel the applicant’s class TY subclass 444 special category visa (‘the visa’).[1]
[1] Exhibit R1, G-2, pp. 3-14
Issues
The decision under review was made under section 501CA(4) of the Migration Act 1958 (‘the Act’). The issues for determination are whether the applicant passes the character test and if not whether, having regard to Ministerial Direction 65 (‘the Direction’), the mandatory cancellation of the visa should be revoked. As a result of the applicant being sentenced to a term of imprisonment for 12 months or more, it is common ground that he does not pass the character test and so the only issue is the latter.
BACKGROUND
The applicant is a 22 year old citizen of New Zealand. He first arrived in Australia on 19 February 2010. The applicant was 15 at the time and he arrived as the holder of the visa. He did not have a very happy start because in 2011 he started getting into trouble and was convicted of a number of offences. These escalated until he and an accomplice committed on 7 July 2012 a robbery in company causing wounding. The victim was a 20 year old male walking home from a railway station.
The applicant was apprehended on 10 July and remained in custody since that time until he completed his sentence.
He was sentenced to a juvenile justice institution .and was released after serving his non-parole period. Whilst still on parole he committed a further offence in November 2016, was remanded in custody and on 27 January 2017, convicted of destroying or damaging property less than or equal to $2,000 namely the door of the home he was renting.
He was sentenced to a term of imprisonment for three months from the date of apprehension on 14 November 2016 until 13 February 2017. The Tribunal does not have any police statement of facts or anything in relation to that offence. The applicant indicated at the time that he had an argument with his partner and he pushed the door off its hinges. His partner gave evidence which the Tribunal will address. She contacted the police as a result of the incident.
On 28 February 2017, the delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act. That appears to have been triggered by the fact that he was back in detention and had in fact been sentenced to a term of imprisonment.
The delegate was satisfied that the applicant did not pass the character test because he had been sentenced earlier to a term of imprisonment for 12 months or more. In fact, the District Court, had sentenced him for the offence committed in July 2012, to a term of four years and three months’ imprisonment with a non-parole period of two years and six months.
In cancelling the visa, the letter from the respondent Department notified the applicant of the cancellation decision and also notified him about his opportunity to seek revocation of that cancellation decision.
On 29 May 2017, the applicant made representations seeking revocation of the cancellation decision and the applicant provided supporting documentation in the form of letters of support from himself, family members and his partner.[2] On 31 July 2017, a delegate of the Minister, having looked at the matter, decided not to revoke the cancellation decision under s 501CA(4) of the Act (‘the non-revocation decision’).
[2] Exhibit R1, G-12, pp. 67-77
The application for a review was filed on 7 August 2017 by the applicant.[3] Under the reasons for application, it states:
It claims I’m a danger. It was my first time in prison and I only spent nine months in jail. I have never been warned by the Department. I was judged on my character as a child, not as an adult.
[3] G-1, pp. 1-2
The matter was heard on 28 September and again on 17 October 2017. Summonses had been issued by the respondent to the New South Wales Police but as at 17 October 2017 those documents had not been returned.
EVIDENCE
The applicant initially had not provided any further evidence in support of his case. Both parties subsequently referred to the case of Mahanasu v Minister for Immigration and Citizenship [2010] AATA 457 (‘Mahanasu’). The case of Sabharwal and Minister for Immigration and Border Protection [2016] AATA 940 was also referred to by the applicant’s migration agent who the applicant’s half-sister engaged on 12 October. The further submissions and further material was supplied on 12 October 2017.
The representative appearing on behalf of the respondent indicated during the course of the hearing on 17 October 2017, which I must say is indicative of the respondent being a model litigant in this matter, that the Tribunal should have regard to the new material filed on 12 October 2017 and that he (the respondent’s representative) should have the right to cross-examine and make further submissions.
This duly occurred on 17 October 2017 and the further evidence and submissions were admitted as Exhibit A1.
The representative for the respondent had the opportunity to ask some further questions in relation to Exhibit A1 which assisted in terms of submissions that he had made earlier on 28 September.
The Tribunal will refer to the comments by the learned trial judge in relation to the 7 July 2012 matters. As the Tribunal does not have the benefit of any NSW Police statements in relation to the other matters the applicant has been convicted of, the Tribunal is left with considering any other evidence before it relating to those matters and any deductions the Tribunal can make itself, from the applicant’s record.
I would point out at this stage that a Tribunal cannot go behind what a sentencing judge or magistrate says unless there is some very, very strong evidence to dispute the facts as presented to and accepted by the court. However, the applicant in this instance is not disputing anything. He felt he may or may not have had a Stanley knife, but he concedes that he cannot remember because he was on drugs at the time and intoxicated. He accepted what the judge said and he accepted everything else that has been said in relation to his offences and his record.
There is no dispute in relation to the facts surrounding the offences.
LEGISLATION
This Tribunal in reviewing this matter is sitting in the shoes of the decision maker, and after hearing all of the evidence, it has to decide whether it should change the decision of the decision maker or affirm it.
I should add that this Tribunal has had the benefit of seeing witnesses in the flesh, seeing how they react to cross examination and has had the benefit of new material that was not before the original decision maker. The original decision maker, as is common practice in these matters, has to make his/her decision on the papers. There are a number of matters the Tribunal must look at according to law. Firstly, s 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.
As already indicated, in this matter, character is not in dispute. Both parties accept this. The applicant does not pass the character test because he was sentenced to four years and three months’ imprisonment with a non-parole period of two years and six months in relation to the robbery with wounding offence. As he has been sentenced to a term of imprisonment exceeding 12 months and is therefore deemed by law to have a substantial criminal record, as that term is defined at s 501(7), he cannot pass the character test.
The question for the Tribunal is, therefore, whether in exercising the discretion under s 501CA of the Act, the correct or preferable decision is whether there is another reason why that original decision should be revoked.
Ministerial Direction 65
The Tribunal must have regard, in exercising the discretion, to Ministerial Direction 65 (‘the Direction’) which is and I quote:
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 that:
·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, they 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 especially one 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 requires a decision maker to take into account the considerations of 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:
·Firstly, protection of the Australian community from criminal or other serious conduct
·Secondly, the best interests of minor children in Australia; and
·Thirdly, the expectations of the Australian community.
Paragraph 14 of the direction sets out the other considerations as follows:
·Firstly international non-refoulement obligations;
·Secondly, the strength, nature and duration of ties the person has to Australia;
·Thirdly, the impact on Australia’s business interests;
·Fourthly, the impact on victims; and
·Fifthly, the extent of impediments of a person is removed from Australia.
These 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 regards 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 the applicant’s criminal record and what it is that landed the applicant in jail. The record is a substantial one and he started committing offences very soon after coming to Australia. He himself has indicated it is certainly not something he is proud of.
When he was still 16, he committed his first offence, robbery in company. His criminal record is attached as Annexure A to this decision.
As mentioned earlier, it is apposite to read the comments of the sentencing judge. They are very important to this case because that is effectively why he is here and why the delegate made the decision he did.
In the sentencing remarks of Acting Judge Garland. His Honour stated:
The offender has pleaded guilty to an offence of robbery in company causing grievous bodily harm pursuant to Section 98 of the Crimes Act. It carries maximum penalty of 25 years and a standard non-parole period of 7 years. That does not apply in this case as the offender was a juvenile at the time. The facts upon which I sentence the offender are these: on 7 July 2012 the victim, a male, was walking from the railway station towards his home. He was carrying a backpack containing a number of items. He was approached from behind by two juveniles, the offender, and a co-offender. He felt someone put their arm around his neck and pull him backwards towards them so he could not move; that was the offender. The offender’s other arm came around the other side of the victim’s body, the offender was holding something, he pressed the object in his hand against the victim’s left rib area. The object is believed to be a box cutter Stanley retractable knife which was later recovered by the police at the scene. The offender was still holding the victim and walked him towards a low brick fence in front of a house, pushed the victim forwards so that he was bent over it, and said to the victim, “Shut the fuck up.”
He continued to push the victim towards the brick fence and the co-offender approached the victim from his right. The co-offender was holding a metal pole which was the section of a vacuum cleaner pipe. This offender said, “Give me your wallet and your phone” and the victim told him everything was in his backpack. He took out these goods and handed them to the offender who was still pushing the victim into the fence. Without warning, the co-offender hit the victim with the metal pole to the head. The pole impacted with the right side of the victim’s face and head. He was again asked where is his stuff. He said, “In the backpack, just take it.” The co-offender hit the victim again to the head and face area with a metal pole and the victim felt immediate pain. This offender took the victim’s backpack from the victim’s back. Its contents were scattered along the footpath. The co-offender hit the victim again two or three times with the metal pole, the victim fell to the ground, the victim was lying on the left side against the fence and the co-offender, and hit the victim again with the metal pole to the victim’s head and hit him several more times to his head, arms and knees.
The co-offender told the victim he would kill him, finish him off, “Any last words, any words for your father or your mother.” He was again hit with the metal pole. He was told not to call the police because they had his ID. Property stolen included a black Nokia mobile phone, black Apple iPad, 8G Touch, a black Tommy Hilfiger wallet containing a 50 dollar note, a Commonwealth bank card, learner’s drivers permit and other cards and a set of house keys. The two offenders then left the victim and walked back towards Kingsgrove Road. They purchased pies and sausage rolls from the service station. They were subsequently arrested.
The offender at the time was described as being moderately intoxicated. His speech was slightly slurred and he acted erratically both in the way he spoke and moved.
It appears that the applicant and the co-offender were spoken to shortly after committing the offence by police who did not arrest them at that stage but made the observation in relation to the applicant of him being moderately intoxicated with his speech being slightly slurred and acting in an erratic manner. I should note that the applicant himself has indicated that he has been binge drinking and also was affected by drugs at the time, which would explain that police observation.
His Honour then continued:
The victim sustained significant injuries including swelling and bruising around his right eye, hematoma and haemorrhage to his left eye, laceration to the lower lip and left chin, both of which were sutured, tenderness to the right cheekbone, his teeth were affected, he had a non-displaced fracture on the right cheekbones. He was eventually discharged from hospital; a surgical intervention was not required. The offender was arrested. He declined to be interviewed, he was refused bail and entered into custody. The offender is 18 years of age. At the time of the offence he was 17 years and seven months. He has a criminal record which includes in 2011 Robbery in Company and Break, enter and Steal. He has a number of Break, enter and steals. 7 December, a robbery and a number of other offences. There is a report of Danielle Hopkins, a psychologist, dated 5 August 2013. The offender is of Tongan descent. At 12 years of age he started to abscond from the family home.
He began to engage in delinquent behaviour and started using drugs. He was physically abused by his step-father. He was eventually sent to Australia. He had not had contact with his mother or siblings since going into detention. He was sexually abused at 12 years of age by a cousin. He has not had a lot of education but in juvenile detention has been studying, and particularly IT. He has abused alcohol, used Cocaine, Ice and Ecstasy. The psychologist said, “He has not suffered from a diagnosable mental illness” however he requires assistance to manage his anger and learning more effective coping techniques. It’s recommended that he stay in a juvenile sentence as if he was sentenced to an adult facility he would be vulnerable to harm as he is easy influenced, and it’s recommended that he not be placed in an adult jail at this stage. He is currently enrolled in an anger management program in detention and he needs to address his substance abuse, his anger, and he needs other assistance. He is also undertaking the course I referred to earlier. When he returns to the community he may require assistance with gaining more pro-social peer support and with adjustment to the community.
There was a juvenile justice report 12 August 2013; it records that the offender said he was “very intoxicated” at the time. That is probably supported by the facts. He said the offence was “the biggest mistake of his life” and something he regrets. He has been studying in custody. He has been an excellent student and he was exceptional at IT. He has a positive attitude in custody and he’s focusing on anger management. A recommendation is made. The court may find it suitable to consider sentencing the young person to a period of control while considering time already served and that he remain in the juvenile justice system.
There is a question of parity; his co-offender was sentenced in this court to a head sentence of five years and a non-parole period of three. The co-offender is of similar age. Both have similar prior criminal records, however the co-offender played a greater part in that he hit the victim with a metal pole that had been part of a vacuum cleaner. He hit him to the head more than once. This offender grabbed the victim from behind and had and pushed against the victim a Stanley type knife and demanded the victim’s wallet and phone. The offender played a significant part in this offence but his part was a little less than that of the co-offender. A plea was not at the earliest time, in fact it was the first day it was set down for trial, however I understand the Crown changed the charge to a more serious one and then back to the original charge to which he eventually pleaded.
I allow a discount of 12 and a half per cent for his plea of guilty. There are special circumstances: his age, his need for rehabilitation and the fact that he is making a good effort in custody to rehabilitate himself. I will order he stay in juvenile justice institution for those reasons. Recommendations were made to me and he is much safer at such an institution than he would be in an adult jail, and I understand he is not causing any problems. It is a very serious offence. It was a vicious attack on a 20-year-old walking from the train station to his home. A box cutter, a pole, both used, significant injuries. The victim was defenceless when he was attacked by these two offenders. The offender must be sentenced in such a way that he realises he cannot behave in this way in the future, and let other young people realise if they commit offences such as this, they will be sentence to terms of imprisonment. The next question is, when does the sentence commence.
The offence was on 7 July 2012, he was arrested on 10 July 2012. Since that time, he has been sentenced to the Children’s Court for unrelated matters. He is serving control orders commencing on 10 July 2012 which does not expire before 8 November 2013. His parole which he was subjected to at the time of the arrest was also revoked and the balance is seven months. His sentencing history is of importance. He went into custody on this on 12 July 2012 and then there was a series of appearance before the children’s court in January, April and July of this year. The offences were committed earlier than this offence however I do not believe he was charged until the 10th of July. The first three were all in May 2012. They are close to each other. The first two were robbery and Break, enter and steal. The earliest release date is 9 January 2013, then there’s a break, enter and steal for 26 May 2012. The earliest release date is 9 July 2013.
Then he comes back again and he is sentenced to a matter which occurred way before all these in July 2012. Break, enter and steal and also a larceny, and his earliest release date is 9 November 2013. These were not favourable sentences to the offender. If he had been sentenced at the same time as ideally, he should have been, there is no doubt the last two would have been concurrent and the earlier two – in fact the earlier three – were very close to each other, would have been dealt with at the same time. There may have been a small accumulation but nothing more than that. The Crown submits the sentences should start no earlier than today. On behalf of the accused, it’s submitted they should commence on 9 January 2013.
I took the view that 9 January is the more appropriate time however there would have been some accumulation if anything had been dealt with on that date, and I have allowed an accumulation of three months so he will start his sentences on 9 April 2013. When looking at parity, it was a co-offender who hit the victim and played a slightly larger part although they were both in this together. There is however, on the other hand, when balancing them a difference in the discount for a plea. The difference in the discount is 12 and a half per cent in favour of the co-offender who was sentenced to five years imprisonment. Taking all those matters into account, having allowed a discount of 12 and a half per cent, I reach the conclusion that the appropriate sentence was four years and three months. A normal non-parole period will be three years and two months however, because of special circumstances, I have reduced that to two years and six months from 9 April 2013. Stand up, please. I convict you and sentence you to a term of imprisonment which consists of a non-parole period of two years and six months and the total term before you is in three months, both the date from 9 April 2013 you will be eligible to be considered for release on parole on 8 October 2015. I find special circumstances, age and rehabilitation. I direct that he remain in the juvenile institution for the period of his non-parole period. I direct that he be supervised upon release and for that purpose he is to report to – now I do not know where, Mr Howell, Newtown Community Services, Newtown Community Offender Services.

His Honour then ordered the applicant to report within seven days of release and obey all reasonable directions of that service for such a period as the service deems sufficient. His Honour then said
“Do you understand?”
Offender says: “Yes.”
His Honour:
When you are released you have to go and get some help and you will still have quite a lot of time hanging over your head. Okay. The difference – I haven’t done the maths in front of me but the difference between four years and three months and two years and six months, you will have hanging over your head. If you misbehave, I’ll put you back in jail. You have had that happen to you before. You will go into jail. Do you understand that? So, you have got to be very careful then when you go out there so you don’t misbehave in any way. Okay. Thank you, we can go. There are no problems with that? Does anyone have any problems? So, no one seems to have any problems.
His Honour then indicated that when he was released, it would only be a short time before he was 21.
The applicant gave evidence before the Tribunal, as did his partner, his brother, sister in law, and his half-sister. They also provided statements to the Tribunal.
The Tribunal was also provided with a statement from Joshua Rosenvall, youth officer, of Frank Baxter Juvenile Justice Centre, where the applicant had spent most of his time in custody. As well, a document dated 11 October 2017 from Craig Derwent of Justice New South Wales, was also tendered which stated:
Hi. There are a number of activities PKJT undertook whilst at the Baxter centre. His participation in all our community activities was of a high standard. His interactions were positive with the community people involved in these activities. He attended off-site work release working for the Mitavite stock food company for a 12 month period prior to his release. Feedback from them was that he was reliable and completed all his work tasks as required. Regards,Craig Derwent.
The statement listed the activities:
Rugby, fundraising at Masters Hardware for Kariong Rugby, surf lifesaving central coast branch community service, Taki Toa Rugby, rural fire service community service, Bear Cottage community service, Outdoor Education school, sport in the neighbourhood community service, MS long ride, MS ride. Henry Kendall HS community service, disability support program, school camp, riding for the disabled, Newcastle Uni, Wollotuka school NAIDOC celebrations, PL cultural days.
It appears that his behaviour in the centre was very good and there were no adverse reports in relation to him after he was placed in custody in relation to him. This is not disputed by the respondent.
The applicant himself made a number of written statements and also gave evidence before the Tribunal. He was cross examined on his written and oral evidence.
He stated that when he was about four, he came with his mother and his stepfather from Tonga to New Zealand. He has an older brother in Sydney, and a younger brother who is still in New Zealand, as is his mother, stepfather and two sisters. He has a half-sister who lives in Melbourne.
He stated that his stepfather was quite abusive. He would regularly beat him and his siblings at least once a week. His stepfather would also beat his mother on occasions. It was not a very particularly nice home.
When he was about 14, his stepfather broke his arm on one occasion. He would beat him with his fists and also hit him with a belt. He was a painter and was of Samoan extraction.
The applicant stated that been sexually abused by a cousin who was at the time in his twenties. At the time, the applicant was about 10 or 11.
He left school when he was about 12. He got involved with a youth gang. He drank and he took drugs, was never home, and his mother was at her wits end. She arranged for him to come to Australia with a cousin to live in Padstow. His older brother had come here before him.
He said his natural father picked him up at the airport and that was the first time he had met him. He lived with his father for a couple of months but told the Tribunal that it did not work out, and accordingly, he then moved in with a friend and his friend’s family.
At this time, he was in Year 10, and not doing particularly well at school. He got involved with a gang at school which comprised of another Tongan Boy, a Lebanese boy and another boy. They were all about 16 years of age and in year 10. The gang would do opportunistic crimes such as drink, take drugs and also engage in binge drinking. He said he was more of a binge drinker than just a regular drinker.
He said he had a bad drinking and drug habit and he spent some time in a juvenile justice institution for a couple of months for his break and enters, and larcenies before he was out again and committed the major offence.
He was out of jail for a few months. At that stage, he had no job; however, he did some opportunistic robberies. He and his gang would take phones and wallets, smoke marijuana every day, take ecstasy and sometimes ice. Then, on 7 July 2012, he committed his most serious offence.
He has been in juvenile justice centres at Cobham, Emu Plains and then of course at the Frank Baxter Youth Centre on the Central Coast. He was separated from his co-accused (who committed the acts of violence) when placed in detention.
Whilst in detention, he said he got a Certificate III in Visual Arts, a Certificate in Outdoor Education, a Certificate II and a Certificate III in Information Digital Media and Technology, completed a First Aid course, got his white work card, a forklift license and his learner driver’s licence.
When he was at the Frank Baxter Centre, he was on day release and working and he also played rugby whilst he was at Frank Baxter with the Kurrajong Warriors. He played with some of the juvenile detention workers who were members of that Rugby club and who appear to have got him involved with the club.
He also did anger management counselling, alcohol and drugs counselling and did the charity bike ride from Sydney to Wollongong for multiple sclerosis research.
He was released in October 2015.
He moved to the Central Coast and stayed with a workmate who was someone he had met at the mill where he was working whilst he was in the Frank Baxter Centre and who also played rugby with the local club. This other fellow lived with his wife and two children and the applicant occupied the granny flat in the back yard. He said he lived there until about March or April of 2016 when he moved in with his partner.
It should be noted that Joshua Rosenvall, from the Centre, has listed all the activities the applicant partook in, but the above are the ones he remembered.
He met his partner in about December 2015/January 2016 and by April 2016 had moved in with her. He said he feels really good around her.
He explained what happened in relation to the door incident. He said they had been arguing, she had been pregnant and lost the baby – it would have been his first child. He said he was blaming her for this for about two or three days before the incident. She kicked him out and he went off with a friend and had around 8 to 10 beers. He came home and she started throwing plates at him through the window, she was not impressed with him, and he said he pushed through the door which broke.
He said they were yelling at each other and she called the police. He said she just wanted him to go away for the night and of course, he got arrested. He said he paid to have the door fixed, so there was no compensation he had to pay. The house was a rented house.
After he was released, he was sent to Villawood. He said he saw a psychologist at induction.
He said prior to the door incident he had changed jobs and commenced working in scaffolding. He said a friend had started his own company and he said he could go back and work for him if he got out.
He said he was working five to six days a week and the job paid well – approximately $1,500 to $1,800 per week.
In cross-examination, he indicated that his mother was still with his stepfather and that he could not recall some of the other offences that he had committed. For example, his first offence in 2011 and the ‘break and enters’. He accepted that the Judge said he had a box cutter Stanley knife at the time. He said he could not be certain if he had it, but he accepts the sentencing remarks.
He said he met his partner around late December 2015 or early January 2016. He moved in with her quickly because he fell in love, and it was put to him, he had said, in his statements that he had been living with her for two years and, he agreed with the respondent’s representative that this was not accurate.
He said that, when he left his job as a mill hand, he did not have a job for a few weeks and that he thinks was probably April or May of 2016. He was employed when he met her. She had an older brother, a mother and a father. He said he was sort of close to them, he would see them nearly every day, and his future plans were that he and his partner would like to have children.
He had discussed whether he planned to go back home with her and talked about travelling to places with her.
The applicant also gave evidence about his relationship with his partner’s son. The applicant first met the little boy when he was about six months old. From the time when he had first met his partner, the applicant and her son were always together. He would bath him, give him breakfast, play with him, change his nappies, took photos with him, buy him toys, clothes, and formula.
Prior to the door incident, he would work 10 hour days. They would work until the job was finished.
His partner worked part time and her mother would babysit her son when she was working. He would see the boy every day and care for him more than his grandmother would. It was put to him if the grandmother was more of a carer than him but he said, “No”. He would care for him more than the grandmother, and of course his partner and the grandmother now care for the boy.
He was quizzed about why he referred to the door incident as a minor charge. He said it was because it was an argument that got out of control. Because the police got involved, it became a crime. He said he did not threaten his partner but he certainly understood she had been scared of him at the time. He said she visited him in jail
When he was asked about his reoffending and potential for further reoffending he said, “I’ve spent enough of my life behind bars, I want to change.” He said beforehand, when he was younger, he would be so angry inside. He said:
I’ve matured. It’s a result of some of the programs I’ve gone through, programs that did good for me
He said, unfortunately, the door was something that did happen. He said, “We initially didn’t talk through our problems and let things build up” implying that they should have communicated more. He said, “We’d go through patches, she’d have the normal arguments.”
He catches up with his family when he goes to Sydney. He used to blame all of his family for what had occurred to him but now he accepts that he does need to look at himself and blame himself there.
His sister in law also gave evidence. She is the Year 10 coordinator at a coeducational school in Marayong She lives in Dee Why with her partner, who is the applicant’s older brother, and is about to have their first child. She has been in a relationship with the applicant’s brother for four years and she has known the applicant for over two years. She talked about his family and said they were close and supportive. The applicant’s oldest brother and half-sister have very strong family values and encourage the applicant to work hard to achieve his personal goals and ambitions. She said:
During the time I’ve known PKJT I have watched him grow to a wonderful young man. He works hard to support his girlfriend and her child both physically and emotionally and I know he wants only to contribute to be able to do this here in Australia. I am very concerned about the possibility of him going back to Tonga
She speaks of him going back to Tonga which is a constant theme in these letters. The Tribunal disregards this as the respondent is clear that the applicant will not be deported to Tonga but to New Zealand. Accordingly her concerns for the lack of career opportunities in Tonga are not relevant. She goes on to say:
‘PKJT is a polite young man. He demonstrates qualities that are admirable for anyone at his age. He is a trusted friend and sibling, a very affectionate and caring boyfriend and he has many interests and ambitions for his future. What ‘PKJT unfortunately didn’t have growing up was a father figure or responsible role model to teach him how to live a prosperous life. It is no fault of his own that he had a difficult upbringing. This meant for ‘PKJT that at a young age he got caught up in the wrong crowd. I know ‘PKJT is extremely disappointed in himself about his past. He wants only the opportunity to prove himself. If possible, ‘PKJT could come live with myself and my partner … in Dee Why. [The applicant’s older brother] can easily find work for ‘PKJT and help him set himself up with a promising future. I would not hesitate to support my reference for ‘PKJT verbally and can be contacted on…”
She gave evidence at the Tribunal and said that, in recent times, she had seen the applicant with his partner and her son. She said he seems to look after his partner’s son well and she said it was “rather sweet to see the way they interacted”.
She said things look good for him, that he is getting his life on track, and even with his work. She said:
[The applicant’s older brother] had his problems in the past too and he and his father also don’t get on well.
She said that in her job, as the Year 10 coordinator, she has 186 children to look after. She had been a coordinator since they were in Year 7 and she has been an English teacher since 2008. She indicated that she had assisted the applicant through prison by sending him money for his needs.
She said her partner also works for her father’s construction company. She and her partner visited the applicant’s mother and his younger brother in New Zealand recently. She said both her partner and the applicant are shy but they look out for each other. She said, under cross-examination, that she regarded his mother as “lovely.” But that she lives in a rough area and her partner was pleased to get away from it.
She said she and her partner aimed to go and see the applicant as often as possible. She had seen them as a couple on a few occasions for lunch. She is expecting herself late this year and she said that her partner was a good, hard worker.
The applicant’s partner also gave evidence. She said she was the complainant in the malicious damage to the door matter. In referring to the door incident, she stated:[4]
I was upset and emotional over our disagreement. I was not thinking rationally and I many more believe my reaction to Post-traumatic stress disorder. I’ve had the opportunity to reflect on the matter in regard to PKJT. I may have saw it differently as to what is really was due to me being so upset at the time. Since them, without any inference on PKJT, I have come to the realisation that he was not out to cause me any harm. The day I met PKJT was the day my whole life changed for the better. PKJT is such a caring person to all that he loves and would do anything to see a person smile. PKJT helped me with many of my problems I had going on in my life previous to meeting him, and I can honestly say I don’t know where both my son and I would be today if it wasn’t for him. A few months in, I let him take on the role as a father to my son which resulted in him being extremely excited and thankful as he loves … like his own, previous to my acceptance.
My son … loves PKJT and looks up to PKJT like his best friend and most importantly, his dad. PKJT has been in [my son’s] life since [he] was six months old and it would absolutely break our hearts to see him leave the country, let alone him being in jail. [My son] may still be young but it has been four months since we have last had him with us in his home, and it is really taking its toll. It’s hard watching my son call out to PKJT every time the phone rings and it’s much harder having the thought of him not coming home to us in my head. Not only am I struggling to cope with him being deported, I am struggling financially.
She talked about picking up a second job, which meant less time bonding with her son. She went on to say:
PKJT has been a big asset in both mine and my son’s life. PKJT taught [my son] many things, from words to his first steps and he has done nothing but impress both friends and family of mine and continues to do so aside from the fact that he’s in jail at present. It’s been suggested that PKJT may suffer from Post-traumatic stress disorder due to him having a traumatic childhood back in Tonga and in New Zealand, which he said he’s willing to attend some counselling for.
She then talks about the applicant being on the streets when he came here, having a lack of direction, and the fact that he did not know his natural father prior to coming to Australia. Currently, he has a full time job, works six days a week, often for 12 hour plus a day. She went on to say:
PKJT is not a dangerous person and I know he will do anything he possibly can to stay with his family and career in Australia no matter the effort or cost. Whether this is irrelevant or not, my violent ex-partner has stayed clear from me and our son since the day PKJT has entered our life. This was a life changer for me and my family, including my parents and siblings. It was a huge relief off everyone’s shoulders. When PKJT’s around I no longer feel scared for my son or myself. There’s a restraining order against my partner but that still does not make me feel safe, even in my own home.
PKJT has family and friends there that are willing to help him with whatever he needs to do. PKJT has a home to live in, whether it is with me, his brother …or Lisa. He classifies PKJT as her own son. Please take time to reconsider PKJT being deported. His whole life is here in Australia and is now in your hands. He is still so young. His life has only started.
She gave evidence before the Tribunal including photos.
She said around about January 2016 she and the applicant met through friends and he moved in with her in about April 2016. She said her son is very comfortable around him and felt that he made her son feel very warm. She said, “I finally had my happy little family.” She said, “He’d get up”, that is, the applicant – and look after her son. He would buy items; she actually would not get up. She said “I’m quite lazy” and that she relied on the applicant a lot. She said she worked part time, that the applicant got on well with her parents and her father was very relaxed about the relationship.
She said, in relation to the door, they had an argument that escalated. He came home drunk, and she does not like him drinking, and would not let him in. She said, “I was being a cow.” He pushed the front door, which freaked her out because her ex-partner was quite violent. This brought up the past and she got the police to ensure that he left. She basically wanted him away and asked the police what would happen next and fully expected that he would walk in a few hours later. He did not because he was on parole.
She said he was a calm and gentle person, and that she never felt that he would actually hit her, unlike her ex-partner. She thought she deserved to have someone in her life, and she does not see herself with anyone else except the applicant. She had met his family, those of his family that are here. She could not see herself and her son with anyone else. She said there is a job for him with his ex-boss if he got out.

She indicated in cross-examination that she got serious about the applicant in about February 2016. He had been working in tree-lopping, then scaffolding. He would start his scaffolding work early – sometimes, he would even leave at 3 am and he would come back at 5 pm; they were pretty long days.
She said if he came back earlier, he would do the housework and she would care for her son, and when she was working, he would care for the son or, indeed, her mother would. She was working on call, one day a week with five- or six- hour shifts.
She was the primary carer, but he also cared for the child. He would be the one who would get up at night and she often felt a bit guilty about that, because he often had been at work for about 15 hours.
They would go out occasionally together, once a month to the pub and have a few drinks. He would never go out with his friends, and initially when she met him, she thought he was arrogant, then, she started to get on with him really well. Like any couple, they had their ups and downs. They would “get the shits with each other,” she said, and that would usually be over “if one of us didn’t do the jobs,” which quite often would have been her. She said, “I felt like a princess with PKJT.”
She lost a child to the applicant and felt as if he was blaming her for that. That was a build-up to the door incident. She said she had some complications in terms of getting pregnant, and she did not like it if he went out drinking without her, which he certainly did on that day because she felt he came home drunk. She said on the day:
At the time he walked straight past me and went to the bedroom, and I then called the police as I didn’t want to sleep with him that night. I had been sleeping in the lounge room before he got in. I said to him, “I may as well be with my ex.”
He then pushed the door, and it came off its hinges.
When he was in custody, she would call him and he would call her every day from jail. They would talk every day.
She gave further evidence, that if the applicant was deported to New Zealand, she would make a new life with him, and she and her little boy would go too.
The applicant’s oldest brother also gave brief evidence. He said he had seen his younger brother on a number of occasions, and he thought he was a lot calmer. He also made a statement on 6 March 2017 and said he is a carpenter who works for his partner’s father’s firm. He expressed his “concern about my brother in the situation he’s in.” He said:
We didn’t have much growing up and for much of my life, I was the father figure to my two younger brothers. We didn’t have the best role models for parents for that matter, when we were younger, and we didn’t have the best upbringing. The reason my brother and I moved over here to this beautiful country was for a new beginning and to build a future for ourselves. It breaks my heart that my brother PKJT might no longer have the opportunity to live in Australia…….
I strongly believe that PKJT can be a contributing member of Australian society. We all make mistakes, and some take longer than others to learn from them. I, myself, have made plenty of mistakes. What do you do if your child tumbles over, you help them to get back up and teach them how to walk, you don’t kick them to the curb and have done with it. What I am trying to say is PKJT should be given a chance to make something of himself in Australia. He has a loving support network, and we all want to see him succeed. I would love to have the opportunity to have PKJT live with me so I can help him find his feet and find where he belongs in life. Maybe I can do a better job now than when I did as a child.
The applicant’s paternal half-sister, made a final submission on behalf of the applicant, and provided the Tribunal with two statements. She also gave oral evidence
She has been an Australian citizen since 1990. She is an architectural drafts woman, completing her final semester of an undergraduate degree in architectural design. She actually had not met her brother, the applicant, until he was 17 and he had moved to Sydney to live with their father. She understood he breached his parole, and was facing a visa cancellation. She indicated the family is very concerned that its case sits precariously between not being deported, and being deported. She felt that if he was, it would be immeasurably detrimental to this young man’s development. He has had a hard life already and has learned the hard way.
As [my older brother], PKJT and myself get closer, having not spent my childhood with him, we look forward to sharing experiences such as weddings, births, Christmas and Easter Holidays.
She said the applicant’s oldest brother has recently become engaged to his long-term partner, and it would be a huge loss if the applicant could not come back for important family gatherings. They said they were a very fractured immediate family, but that the applicant has people who love him very much here. She talked about his recent arrest resulting from the terrible, unfortunate error in judgement, where he was overwhelmed by an emotional situation. She and the family do not take that lightly, so there are behavioural issues that need to be addressed. He needed some more support, and needs to be around family and friends. She felt he was not a dangerous person and noted that his girlfriend regularly entrusts him with her young son.
She felt that this young man has fallen through the cracks. She said he has expressed to her that he has found far more in Australia than in New Zealand, and the instability he had experienced and his illness would be exacerbated if he had to go back there. He certainly did not have the parental support he needed when he was growing up. He thought it was counter-productive to punish him and put him back into company where there had been problems as a child. He had started to work on a new life, is far more stable and has a good support network
She indicated she had been reunited at about the same age with her natural father. She wanted to really get to know the applicant and his older brother. She actually went to see him at Frank Baxter. She found him very shy and withdrawn to start with however she had talked to him every weekend in the last 12 months. She would phone him and talk for about 6 minutes. She saw the applicant when he was living with his work mate and his family in Gosford. She then saw him with his partner. She said he was a lot more open and honest with her when she saw him with his current partner.
She said both of the situations he was living in were stable and conducive to him settling down. She said he is more settled and happy, a complete change to his old lifestyle. She talked about his arrest, in which he had expressed to her shame and regret and was slowly coming to grips with all of it.
She said that she, his older brother and his partner and the applicant could relate to each other. They needed to be tighter and they need to work even further together. She will come to Sydney a lot more.
In cross-examination, she said she felt some of the behavioural issues were the reasons for his arrest. She talked about the Smart Recovery program, an alcohol educational program which she thought would be good for him. When asked about the door incident She said she did not think it was okay to put someone in a situation where they would be scared (referring to his partner).
I was particularly impressed with the evidence given by the applicant’s sister-in-law. Her evidence was clear and forthright. She impressed the Tribunal as being a very caring, intelligent person and a well-educated and professional person who is obviously a very good partner to the applicant’s older brother. They are about to have a baby and, clearly, both she and her partner indicated that if the applicant needed to work in Sydney, there would be a room for him in their house.
I found the evidence of the applicant’s partner also quite impressive. She was obviously terrified in relation to the door incident, but then indicated that she realised that the applicant was not actually going to harm her, and that he had just walked past. She indicated that in the worst-case scenario, she and her little son would go to New Zealand with the applicant. I found her to be a credible and impressive witness. Her evidence indicated that she clearly appreciated what the applicant was doing and was giving, what I regarded, as very full and frank evidence and clearly has great affection for the applicant. She appreciated what the applicant was doing to help her and her son, and the fact that her son regards him as a father figure.
Similarly, the applicant’s half-sister is a professional woman who impressed the Tribunal with her desire to help her brother in any way she could.
All three women who gave evidence, I found were very intelligent, sincere in their wish to help out in any way they can. The applicant’s half-sister lives in Victoria but clearly indicated that she would spend a lot more time helping her brother. He has a very good and capable family support network.
The other person who gave evidence was his former boss, who has got a job lined up for him, should he be released.
He confirmed that the applicant had been working 15 hours a day. He said the applicant would leave home at 5 or 5.30am, and work until 7 or 8 pm until he got home. This evidence corroborated what his partner said in terms of the long hours that he was putting in.
He also indicated that some of the workers he had were somewhat slack and he would get rid of them, but the applicant was not. The applicant was one of his best, and there were some courses he could do. They had not quite got around to that because he got himself locked up but certainly there were courses that he could do. He confirmed that he would certainly have the applicant back. I got the impression, that he regarded the applicant as a very hard worker who he would clearly like to have back working for him and who he had big plans for in the future. This is all very positive.
CONSIDERATION
It is rare that these types of cases are black and white, Sometimes people commit such horrendous offences, where people are hurt; that it is clear no reasonable person would want them to remain in Australia for fear that they would do it again. Others, occasionally, are cases where the Tribunal can be very confident that there will be no reoffending. Such as those rare occasions where someone has committed a one-off offence which gets them a 12-month jail sentence however everything else points in their favour. Those are rare. Normally, there are situations somewhere in between, such as this case and because of the very bad record the applicant has, it means that this is a very serious matter and there are some very significant issues there. The Tribunal will now address the primary considerations and then address the other five considerations.
The primary considerations
The protection of the Australian community
The first consideration is the protection of the Australian community, and that is the protection of the Australian community against harm. When looking at this, the Tribunal should have regard to the principal that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct on citizens. Also, there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. The Tribunal must give consideration to the nature and 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.
In terms of the nature and seriousness of the conduct: the nature and the seriousness of the offences, which is in clause 13.1.1, subsection 1(c), is reflected in the custodial sentences which have been imposed on him. The Tribunal has to look at the fact that in Australia, incarceration is a matter of last resort. The fact that the applicant got a custodial sentence of four years and three months with a non-parole period of 30 months is a reflection of the gravity of his offending. That was ably expressed by the learned judge. The Tribunal also has to take into account the further three months’ imprisonment imposed and the revocation of parole in relation to the incident with the door and the breach of parole. Those are serious offences.
The Tribunal has to look at the frequency of his offending, and if there is any trend of increasing seriousness the Tribunal must look at all the various offences there. There are a considerable number of offences. I have to look at his explanations as to what occurred. In his instance, his early history certainly shows a pattern of disregard for the laws of Australia, and these offences were committed over a period of time. They were committed when he was a juvenile
The Tribunal has to determine if there is a trend of increasing seriousness. The Tribunal must determine whether these offences were committed against vulnerable members of the community and whether they were they violent offences.
In relation to the main offence, he was clearly affected by drugs. He was intoxicated as well. It was an offence committed in company, and the victim was badly bashed by the co-accused. In taking any positives out of that, the applicant did not bash him. He held a Stanley knife to him, however there are no indications the victim was cut by that knife. Being attacked by two large young men was a terrible experience for this victim. There is nothing to indicate that the applicant did anything to stop the co-offender from bashing the victim. He certainly did not bash the victim himself, however it was a very serious offence, reflected in the penalties, and the applicant had some serious issues at the time.
In terms of the most recent incident, the door incident, it is also serious, but it occurred after a lot of other events happened in the applicant’s life. ,
Upon being arrested for the 7 July 2012 incident and after being locked on 10 July 2012, for that incident, the applicant was separated for the co accused and seemed to do very well in the Frank Baxter centre. There appears to be no adverse reports of bad behaviour there or in other institutions.
Until he was sent into juvenile detention his life it is fair to say was absolutely chaotic with no structure from the time he could remember as a 4 or 5 year old child. The Baxter Centre should be commended for the excellent job they have done in terms of helping turn his life around.
The applicant ended up in a decent juvenile justice facility, where there were a lot of courses and activities he could do. He seems to have seized the opportunity and made the most of it, enthusiastically doing whatever was on offer. He went out to work. He also played with a local rugby club with some of the people who work in the Baxter centre. He did a large number of courses, including courses such as anger management and other such courses that one would hope he would avail himself of whilst he is in custody. Obviously, as a result of this he would have to come out a much better person than when he was first incarcerated.
He was not employed at the time he committed the most serious offence in 2012. Since his release from the Baxter centre, he has not, apart from the short period between jobs in 2016 been out of employment until the door incident. He was cross examined at some length as to some discrepancies in terms of what he had written regarding such things as when he was employed. He agreed there were discrepancies, but where there are discrepancies, and they were pointed out to him in cross-examination, he readily admitted any errors that he has made. If there was any errors, I got the impression they were honest errors and not deliberate.
It is clear from all the evidence that he has worked hard and has a job to go back to, should he be released.
His actions though were of a violent nature simply by being in company and doing nothing to stop the other offender, viciously assault the victim. At any rate, any robbery has an element of violence, even if one is not actively engaged in perpetrating the violence.
The applicant’s most recent effort, which seems to be the certain catalyst for him being before this Tribunal and facing deportation, is the door incident. It is not a minor offence as the applicant initially described it and the applicant appreciates that now. Perhaps neither he, nor his partner appreciated the ramifications on the night in question, but they effectively amounted to him being here, potentially being deported and serving more time in custody. He certainly appreciates that it was not the right thing to do.
It appears to have been, effectively, a one-off while he had been drinking, and after an argument with his partner, in relation to the loss of a child. This is a concern to the Tribunal and I hope the applicant has reflected on that, because his partner was having trouble conceiving, and she needed all the support she could get, rather than the self-centred response at the time by the applicant.
She clearly loves the applicant, and it was very thoughtless and selfish of him to be upset at her because the child was lost. She has obviously been able to have a child because she has a young son who the applicant regards as his step-son. She would have been just as sad as he would have been, and I certainly hope that he has reflected on that. Apart from that incident, though, they appear to have had an excellent relationship, and are both very much in love. She is prepared to spend the rest of her life with him. That is not something we necessarily see very often in this Tribunal, and that is indeed something very much to his credit. However, I have to have regard to that further offence.
The robbery with wounding is the most serious offence, however the door incident is not an insignificant offence either, and that occurred after a judge had warned him.
The Tribunal must have due regard to everything in relation to his criminal record. . In terms of his offending, I have discussed the other offending, the opportunistic crimes involving taking people’s wallets and mobile phones, effectively, when he was in a youth gang. The evidence is not in his favour there, but there is one thread that comes through with his offences, which I should mention. He committed robbery in company in 2011, took possession of stolen goods, engaged in breaking and entering, robbery in company in January 2012 and destroyed property, which is not quite explained, because he cannot remember a lot of these offences. That is of significance, because that is actually a violent offence. I note however that there are no charges, or convictions for assault, or assault occasioning actual bodily harm or actual violence against a person. The only violence against a person is in company, and that is causing wounding, and that was by the co-offender in this nasty robbery on 7 July 2012.
The Tribunal has not been provided with any police statements, but I am certain, knowing the standard operating procedure of the New South Wales Police, that if someone committed an offence of assaulting another person or maliciously assaulting and causing injury, or of assaulting police, they would be charged for it. It would seem that the robbery offences were as the applicant said, offences where he actually did not hurt anyone
He is a big young man and it is clear he was there on the scene monstering the victims and taking wallets and phones from them. That, in itself, is violent but I do note that he himself did nothing more physical than just grab and push people around. There are no indications he has punched anyone, stabbed anyone, or anything of that nature.
The Tribunal notes the fact that on a number of occasions, some of the goods that were stolen were of considerable value. These are certainly serious offences and they occurred not long after he came to Australia, which is another thing I have to take into consideration as well.

Clearly, he was also a repeat offender and many of his offences were done in company.
It does not appear that anyone who was a vulnerable person was a victim.
There are no street offences (assault police, resist arrest, hinder police) which are fairly common types of offences people such as the applicant and his former gang members commit (i.e. offences again people in authority).
The Tribunal also has to look at whether he has reoffended since being formally warned, or 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 about his migration status. Certainly, he is now well-aware of that after his latest offence of malicious damage to the door.
Another factor the Tribunal has look at is the risk of the conduct being repeated, and I have to have regard to the principle that the community’s tolerance of any further risk of harm becomes lower as the seriousness and potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In the decision in the matter of Petelo v Minister for Immigration and Border Protection [2017] AATA 1621, Mr Petelo, whose record, apart from the fire arm offence was not as bad as this applicant’s, was sent back to New Zealand because he shot someone with a rifle. That in itself was an instance of something so serious, that any risk of it being repeated, was a risk that that might be unacceptable.
In terms of the applicant’s offences, they were largely committed as a juvenile or just after he was a juvenile. He had not actually been the perpetrator of the actual violent conduct, apart from grabbing people, or of any serious harm to victims. He was on ice at the time and was also on a drinking binge. He has since committed a further offence, when he was clearly upset and drunk, (namely the malicious damage to the door incident in November 2016).
It is interesting to note that his partner has indicated that, on reflection, she felt there was no way he was going to harm her, even though she was naturally terrified at the time, and it appears that he had no intention of doing so. It appears, and his movements indicate, that he was simply going in/ through the door, to get to bed. The evidence also indicates that he was drunk and very upset at the time. There are no police statements, (which they would have been handy) or anything else to suggest otherwise.
Had there been police statements or other evidence to suggest he had actually assaulted people himself then this would go very much against him; but in terms of looking at conduct being repeated, and looking at the worst case scenario, I would imagine the conduct would most likely not be dissimilar to these opportunistic robberies at worst, or perhaps potential damage to property again. It would seem from his previous modus operandi that he personally would not be the one who punched, hit or stabbed any potential victims. One would also only expect him to re-offend if he reverted to drugs and or excessive drinking.
The risk of harm in his younger days was high. After noting his experiences in Frank Baxter and having listened to the evidence of the various witnesses it would appear to me that there is now a fairly low-risk of him reoffending. Certainly, the more recent evidence points to some significant family support and a maturing on the applicant’s part.
He was in a structured environment in the Baxter Centre and that has helped him. He has had considerable assistance from a number of people since his release. He has made good contacts, has had many positive influences on his life. He is a highly regarded employee, has engaged since his time in detention in community and charitable activities. The fact that he was playing a competitive sport, a team sport (Rugby), at a reasonable level as well and that he intends to continue playing it if he is released is also a positive. His involvement with the rural fire service, his artistic talent that led to his artworks being displayed and his participation in a charity bike ride are all quite impressive.
The report from the juvenile centre, by Joshua Rosenvall, included in his activities such activities as rural fire service community service, outdoor education and writing for the disabled (which are in addition to the activities the applicant recalled partaking in, in his evidence). Those are all good community things to be involved in, so there is a lot going for him there.
However, he has a very bad record, but certainly his conduct since incarceration at the Baxter centre and since, does leave the Tribunal with a reasonable degree of confidence that he will not reoffend and as I have indicated, the risk to the Australian community, at worst, should he reoffend, would be offending along similar lines as before.
The best interests of minor children
The applicant’s step son regards him very much as a father, indeed, as his father.
On the resumed hearing date some “happy family photos” were tendered by consent. These photos included shots of the applicant, his partner and her son, photos of the applicant and his partner’s son which show him displaying a great deal of paternal-type affection and carrying the little boy on his shoulders. The little boy clearly seems to be very happy and very much at ease with the applicant.
The Tribunal was also provided with another happy photo of the applicant with two other little boys and a little girl who is about seven or eight. The Tribunal believes they are some of the applicant’s nieces and nephews. There are various other photos of happy family settings. Included with the photos in the tendered documents was a note from his partner saying how much she loves him and wants to spend time with him.
The Tribunal was provided with evidence of text messages from the applicant to his partner, stating:
Dear … I love you more every day I spend with you. You are my happiness, you are too good to be true. Love, PKJT.
There were some further photos of the applicant on the couch with the little boy, taking him down the beach, further shots of the three of them as a family, and a photo of him carrying his partner on his shoulders. The applicant stated in a text message
Miss you so much. I love you so damn much, my babe. You are the love of my life, babe. Honestly, I hope you’re okay. I hope that you have a good night’s sleep and a good day tomorrow. Good night from me to you and (step sons name )------. I love youse.
The photos provided seem to reflect the fact that everyone is very happy and appear quite natural. The photos corroborate what the applicant’s partner, his brother and sister in law and his half- sister have said about the applicant’s relationship with his partner’s son.
The respondent does concede that it is in the best interests of the applicant’s step son, for him to be in Australia. The child regards him as his father which he is to all intents and purposes as the child’s natural father exited the little boys’ life when he was several month’s old. In terms of nieces and nephews, there is little evidence either way on this topic but it may be in their best interest too if the applicant stayed.
The expectations of the Australian community
This is a tough consideration to address. The Australian community expects non-citizens to obey Australian laws while they are in Australia. The applicant has breached that trust, has done it on a number of occasions, and in relation to the offence of robbery with wounding, he has breached that trust in a very serious way. The expectations of the Australian community are something that I have to take into consideration, and I think in this instance, they may well be quite mixed.
There would be many people in Australia who would look at this, as the Delegate did when he first looked at it who would be in favour of sending him back to New Zealand.
There probably always be a small number of Australians who think that once people are here, they are our problem, no matter how bad they are.
I think it fair to say that when a person in the applicant’s position commits a serious offence, most Australians would expect the person to be deported, unless there are some very good reasons for that not to occur. The average Australian is usually prepared to give people a second chance, especially if the person is young, has reformed, is not likely to reoffend and there are other significant factors in their favour.
There would probably be a considerable number of Australians who, being fully aware of the applicant’s circumstances who would still think that it is all very well to say how much progress the applicant has made in recent times, but his offences are too many and/or to serious to allow him to stay.
Conversely, I believe there would be a considerable number of Australians who would think that as a result of his current circumstances that he is worth taking a chance with, especially if some pretty strict conditions could be placed on him and if it was clear that Australia would not extend him any more than just this one chance. In a case such as this, the expectations of the Australian community I believe it would be mixed.
Other considerations
The Tribunal must address the other considerations. These are not as important as the primary considerations, but the Tribunal has to consider them all. They become very relevant depending on how important they are in each applicant’s case.
International non-refoulement obligations
International non-refoulement obligations are not relevant in this case.
The strength, nature and duration of ties in Australia
This is an important consideration and needs to be looked at in conjunction with best interests of the child.
The applicant has a partner, who wants to make a life with him and vice versa. She has a little boy who is still an infant, and who loves the applicant and regards him as his father. The applicant has a brother, who has taken a significant interest in him and who appears to be a pretty good role model. His partner, the applicant’s sister-in-law, who also wants to do the very best for the applicant him, was an impressive witness who came across as a most capable, intelligent, practical, level headed lady.
The applicant has a very capable and knowledgeable older half-sister, who is going to spend a lot more time with him, even though she lives in Melbourne. He also has some good friends including his former employer, who runs the business, and who thinks he is a really good worker. He might have only employed him for three months, but he regards the applicant as one of his best workers and he has got big plans for him if he were to stay in Australia.
The applicant has done a number of things in the community, which are to his credit. He has, after leaving the Baxter Centre, stayed with a fellow worker and a fellow colleague in the football club who, has a wife and two children. This seemed to have been a good stable set up for the applicant and he then moved in with his partner which is another good set up.
He intends to stay in the area with his partner if he is released, go back to his old job and continue to play with his old rugby club. His partner has family, including an older brother and her parents close by. He gets on well with them. He has, in other words, a very positive set up. It is clear that he has significant ties in Australia and since he went to the Baxter Centre and upon release from that centre they are positive ties.
The impact on Australian business interests
Whilst the applicant is certainly a good worker, there is no real evidence to suggest cancellation of the visa would have any impact on any business interests except perhaps his old employers’ small business in that he would lose a good worker he has big plans for.
The impact on victims
In terms of the two victims in this case, the young 20 year old man who sustained injuries in the robbery has recovered and is probably never going to see him again and there does not appear to be any likelihood that the applicant would ever see him, or be so minded to.
The other potential victim would be his partner who has given evidence and seems quite happy to make her life together with him. The door incident seems to have been a one off, in terms of their relationship. She certainly has rationalised it. He seems quite ashamed of what he has done, and as a result of that incident the applicant indicated to the Tribunal that he is intending to not even drink alcohol upon release to make sure there are no likelihood of it ever occurring again.
He further seemed to appreciate that most codes of football have had to varying degrees in the past a drinking culture but there are certainly lots of players in all codes who do not drink at all. I think it is a smart move by him if he does abstain upon release.
As a result of his time in custody and the courses and treatment he has undertaken he appears to be well and truly drug free.
Extent of impediments if removed
He does not suffer any health conditions. There would not be any issues in relation to his access to the public health system if removed to New Zealand. I accept the representative for the respondent’s argument that I should not have any regard to the mental health issues and I note the submission from the applicant’s recently hired legal representatives does contradict itself when it says the mental health issues in New Zealand and Australia are problematic. They are not holistic. That is a common criticism.
I do not have any regard to the fact that there may be problems with the mental health system in New Zealand. Equally, there could be problems with it in Australia and at any rate, the applicant does appear to have taken steps in relation to that and has indicated he will take further steps, with the assistance of his loved ones, if in fact his mental health is a problem in the future.
I also noted what the learned Judge said and I note that the mental health issue did not really arise to a significant extent at his sentencing, because the assessment did not actually detect anything such as bipolar problems or ADHD, which is often common with offenders such as the applicant. He is sensible of course to follow through with, because of his troubled childhood, however, it is something that can be over emphasised and one of the best cures is engaging in anger management and/or making sure he stays off drugs and if he does drink, drink sensibly. If he does not drink at all, so much the better as it removes another potential problem.
The applicant has been involved in community activities. He has been a good family man, had a job and contributing to the community. I do not think he would have any trouble getting a job in New Zealand. The fact that he is a reasonably talented rugby player means upon arrival he could join a local Rugby club, and meet people which would help him obtain employment and become part of the community very quickly.
There are no real impediments to the applicant, going back to New Zealand. He has come from there. He is a rugby player. He would be going back with his partner and a baby. For a lot of people who come before this Tribunal, in relation to these types of matters, New Zealand is probably the best place to go to if you have to be deported from Australia and the applicant is probably more equipped than most to slot back in, in a positive way.
Furthermore, he has got his mother (I do not think he would probably want to see his step-father), younger brother and 2 younger sisters there. There is some family there, albeit, not to the same extent as his family in Australia who wish him to stay here. I do not think that deportation to New Zealand is a particular impediment and is not something that would weigh heavily on my mind in his situation.
Both parties in their submissions referred the Tribunal to the case of Mahanusu they felt was a very relevant and not all that dissimilar case. . It also involved a young NZ citizen of Tongan extraction.
The case had a number of similarities, age, serious crimes and such, but a number of significant points of difference which has helped this Tribunal in coming to its conclusion.
Mr Mahanusu, the applicant, in that case, was born in 1984. He came to Australia when he was 13. He is Tongan extraction. His father was a Bishop in the church. He had problems from the age of 12 or 13, drinking, engaging in fights.. He had been in juvenile detention for assaults and armed robberies. He continued to drink. He was into marijuana, became addicted to heroin and to satisfy his heroin habit, he engaged in larceny.
He was convicted when he was a 19-year old of a number of matters and was jailed for six months. He then committed approximately 30 offences as a 20-year old in 2004 and his most recent convictions were in 2006 for 8 offences of robbery in company, one offence of robbery whilst armed with a dangerous weapon and one offence of aggravated assault with intent to rob. He committed these offences with a co-offender over a period of 38 days. It seems, the offences were committed in 2004 when he was 20.
The learned sentencing judge said a number of things in sentencing and I list below some of the comments that are relevant to Mr Mahanusu’s case, which, in a number of instances are in stark contrast to the applicant in this case.
In terms of rehabilitation, the learned Judge had this to say of Mr Mahanusu:
It does seem, as I indicated in the course of submissions, that the offender has had the opportunity to experience rehabilitation programs, but that really has not been to any avail. He has not availed himself of the opportunities which have been extended to him in the past.
His Honour sentenced Mr Mahanusu in August 2004 to a lengthy term of imprisonment commencing from when he had been taken into custody on 11 January 2004 until 12 April 2010. His Honour is quoted at [11] in the Tribunal decision, as saying in relation to his time spent in prison:
The records before me indicated that during his prison term and between 11 January 2004 and 6 October 2008, Mr Mahanusu was charged with 21 offences in prison, ranging from failing to provide urine samples, to smoking in a non-smoking area, disobeying directions, possessing drug implements, possessing drugs and assaults. Mr Mahanusu submitted and I note that in line with the changes in attitude, he said he has adopted, there were no prison offences recorded after 6 October 2008 until his release into detention on 12 April 2010.
Mr Mahanusu had committed 21 offences whilst in custody and the applicant has not had any and in fact, appears to have been a model prisoner.
Another matter dealt with at [28] in the Mahanusu matter related to a psychological report dated December 2009 on Mr Mahanusu’s discharge from the Violent Offenders’ Therapeutic Program. It related to the nature of the offences. It stated:
A central feature of Mr Mahanusu’s violent and general offending was planning, though there were also opportunistic aspects to the offences. When discussing his life patterns, Mr Mahanusu recognised his criminal lifestyle had taken more planning that he had previously thought. For example, choosing a different rich area each day to commit a crime, thereby avoiding getting known or caught in that area. He stated that he would take time to look around the area for opportunities where he could get money without using violence and where there would be no witnesses. Mr Mahanusu even went so far as to wear clothes that he thought would blend in with the area chosen. For example, business attire in the city or casual clothes in tourist areas.
Unlike the applicant, who committed his offences in an opportunistic way, Mr Mahanusu seemed to actually have planned his transgressions beforehand.

The Judge also made the comment:
Drug addiction is not a mitigating factor in serious offences. Addiction is not an excuse.
The Tribunal agrees with this and notes it is certainly pertinent and applicable in the applicant’s case. However I note the applicant does not seek to put it as a mitigating factor, but merely as an explanation as to why he committed these crimes. I am not sure whether Mr Mahanusu did, or did not.
Another matter discussed in the case of Mahanusu was the consideration of whether the conduct may be repeated. The Tribunal, on that issue, said:
I am mindful of the previous general conduct and total criminal history, including Mr Mahanusu’s conduct in prison and the fact that from October 2008 to his release in April 2010, there is no record of offences committed in prison. The respondent submitted that the risk of reoffending is high, given that Mr Mahanusu was on bail when, in 2004 he committed the 10 offences for which he was convicted in 2006. Mr Johnson further submitted that it is of particular relevance that the breaches were in relation to drug use and violence, which tended to show that Mr Mahanusu had not rehabilitated. Mr Johnson also referred to the discharge report and Judge Knox’s remarks in that report, which I think I have mentioned.
In that case, it was also noted at [40]:
I have noted that Mr Mahanusu has never been in paid employment in Australia and has been involved in crime virtually since his arrival here as a 13-year old. He says he would take some time to adapt to being in the world outside prison and that he wants to demonstrate he can do that. He says he has got the support of his family and his present girlfriend, Larissa.
At [42], the Tribunal said:
I am not satisfied that Mr Mahanusu can, even with the support mentioned above, maintain a lifestyle without drugs and the resultant crime. His drug habit is a long entrenched one and his family supports appears not to be strong. Mr Mahanusu told me that after the initial rejection by his family, because he had let them down, they now support him. He said that he did not like his family visiting when he was in prison because of the distress he had caused them. I noted that apart from letters from his parents and two sisters, there was no support expressed for him. These were nonchalant statements, and no one appeared at the hearing by way of support.
That is not the case in the applicant’s situation.
The Tribunal concluded ;
Taking into account all the evidence and submissions, I am not satisfied that the significant risk to Mr Mahanusa again engaging in criminal conduct in Australia is low.
In looking at the best interests of the child, the Tribunal said:
Mr Mahanusu was asked about a relationship with a woman who now has two children and lives in the USA. He told me one of these children may be his, but that he does not know them and has no personal relationship with them. However, he emphasised how close he feels to his younger sister, now 19. His evidence about contact was that first he phoned her daily and later, that it was once every two or three days. There was an unsworn statement from her supporting her brother. She was not present at the hearing and I had no opportunity of asking her questions or assessing her evidence. There is no indication Mr Mahanusu supports her children in the USA or his sister financially.
Further, the Tribunal noted that:
Mr Mahanusu was born in New Zealand to Tongan parents. He had lived there until he came to Australia aged 13. He is 26-years old and to my knowledge, he has not returned to New Zealand. He has spent most of his time since arriving in Australia in custody of one kind or another. He has never undertaken paid employment in Australia, although I noted from the discharge report that he worked as a leading hand in the storeroom of the Mid North Coast Correction Centre in 2006-2007, where he was considered co-operative and undertook his allocated duties. However, attracting the comment that he did the bare minimum and did not look for additional tasks.
Again, unlike the applicant in this case, who appears to be a very good worker and is constantly seeking to do all he can to assist his employer. Indeed his ex-boss, indicated that he did not feel terribly stressed when he (the applicant) was on the job because he knew he could rely on him so much and that was important knowing he had a worker he could rely on.
In final comments in the Mahanusu case, the Tribunal said in, considering the psychologist’s comments in the discharge report;
“His conclusion was the overall risk of Mr Mahanusu of reoffending is difficult to assess with any degree of certainty, as he has only been on the methadone program for a time and has spent quite an amount of time since he arrived in Australia in custody. However, one factor is that he has not done well in rehabilitation programs. Based on all the evidence before me, including the risk factors identified in the discharge report and Judge Knox’s findings, I am satisfied that the protection of the Australian community would be compromised if Mr Mahanusu were to remain in Australia.”
In terms of family ties, the Tribunal said:
Mr Mahanusu’s family ties in Australia are the most relevant of the other considerations, although his evidence was that in recent times, his family stood behind him and visited him, I am satisfied from evidence of the psychologists in the discharge report that he did not have many visits from them and could not contact them at times. I am satisfied that Mr Mahanusu does not have strong family ties in Australia and I understand he does not have many family members in New Zealand.
And further:
He might have difficulties adjusting to life outside a correctional institution, whether it is in Australia or New Zealand.
Having weighed up all those considerations, the Tribunal was satisfied the decision of the Minister to cancel Mr Mahanusu’s visa should be affirmed.
This is a very useful case, on the basis that it actually shows the applicant in quite a good light, when compared with Mr Mahanusu, who seemed to have some significant issues, which he actually had not properly addressed. The Tribunal was not referred and could not find any other cases which were similar to the same degree in their factual situation to the applicant’s case.
In summary, in this particular matter, I have due regard to the protection of the Australian community from criminal or other serious conduct and the applicant should be under no apprehension as to just how serious his conduct has been. In terms of that, the Tribunal has to look at the potential for what would happen if he reoffended in the future and I think the potential is that he would do something very similar to what he has done before. I have to assess the likelihood of what he would do if anything went wrong. I note the comments of the learned Judge that he was going well in the juvenile institution and the evidence from the authorities at the juvenile institution that he was going well. I note, and I was particularly impressed with, the evidence given by his partner, his sister-in-law, his half-sister and to an extent, the brief evidence given by his brother, as well as the strong evidence from his ex-employer.
It appears to me that he has a very strong family network. He has a woman who loves him, who is prepared to go to New Zealand, if need be, and that is unlike a number of people who are deported, by this Tribunal, in affirming these decisions. That is to his credit.
A matter like this always concerns me in terms of, “what if something goes wrong” . , and whilst I cannot have complete confidence that something may not go wrong, I am heartened by the fact that for all of these offences, some of which were violent ,, this man has not actually personally injured anyone as a result of what would have been quite terrifying situations for the victims. Further, it does appear that he has, firstly, thanks to the structured environment of the Frank Baxter Centre, grown up. Secondly, he has got into good company. Thirdly, he has collected around him a loving family support group, which he clearly did not have before and fourthly, he has a very good partner who wants to stay with him for the rest of his life, who he needs to respect which I think he does and needs to fully appreciate. The one mishap that occurred (the door incident) was when he did not appreciate the trauma she was going through in losing a child and thought only of himself. I think that is something he has reflected on and certainly needs to consider.
In all other aspects, clearly, he is in a very loving and caring relationship and does a lot to help that relationship, is a very good father to his partners’ son and is clearly a person she loves very much.
I think all of those factors indicate that, as far as the protection of the Australian community is concerned, there is quite a low risk of him reoffending and if a worst-case scenario did arise, it would most likely be something where members of the community would not actually be physically hurt. I say that with significant confidence, but not total certainty.
It is clearly in the best interests of the child, his step-son that he remains in Australia. I think that no one is going quibble with that and as I said earlier, the expectations of the Australian community are a bit mixed here.
I would think the expectations of the Australian community would not necessarily be that he would be sent back. I think there would be an equal expectation perhaps, by a significant proportion of the community that he does deserve a chance, especially given the way he has very largely turned his life around and the support systems he now has in place to ensure that continues.
No international non-refoulement obligations apply here. He has significant strong ties here. There is no impact on Australian business interests. There is no impact on victims, except for his partner and the extent of impediments, if removed, is not a particular consideration because of the closeness between Australia and New Zealand and the attributes the applicant would bring to New Zealand, just like he is bringing to Australia if he keeps himself out of trouble.
All things being considered, and this has caused me quite a lot of difficulty, I am prepared to make a finding that the decision of this Tribunal is that the decision under review will be set aside. I further believe that the respondent needs to impose some conditions on him staying in Australia which I shall now address.
In my view the Department should immediately formally warn the applicant as to his migration status as he has not been previously warned in relation to any further breaches as to his migration status, The effect of the warning should be that if he commits any further offences, of violence and/or dishonesty, he will go back to New Zealand.
I also think it appropriate if the department gave consideration as to how long the period should be where the applicant would be subject to immediate visa cancelation and deportation where he to be convicted of any offence of violence or dishonesty. I would think a period of not less than five years would be appropriate in the circumstances
I would further expect that, the only offences where the applicant could be exempt from this provision would be minor traffic matters. I would think even conviction for a mid-range PCA (Prescribed Concentration of Alcohol) should see the applicant deported because, clearly it would mean he has a drinking problem and has not reformed as he said he would. With these protections in place, I am confident the concerns inherent in a matter such as this are addressed and providing the applicant stays out of trouble and continues to do all the good work he has done up until the door incident he will prove to be not only a good family man, a good father, and a good husband, but also a very useful citizen who can contribute significantly to Australia. He has got skills we as a nation can use. His scaffolding skills will stand him in good stead.. It is an industry where we are always going to need trained people to work.
The applicant is obviously a good, hard worker and there is significant scope for him, not only to lead a very satisfying life with family and friends, but live a satisfying life materially and contribute to the community.
I am also impressed by the fact that the applicant had been engaged, admittedly whilst in custody in a large number of community services. He is a talented artist, a useful second row forward, has been involved in various charity work and community work such as the rural fire service. Many of these activities it seems he wishes to continue with. As such, he has the potential to be a very useful contributing member to Australian society.
The effect of my decision is and I do not think the applicant should be under no apprehension that he has only just fallen on the right side of the ledger, that he must keep out of trouble and continue to do all the good things that he is doing. If he does, he can look forward to a very satisfying life in Australia with a happy family. However, if the applicant reverts back to his previous lifestyle as a young man, he will be deported back to New Zealand.
DECISION
The decision under review, being the decision of the delegate of the Minister dated 31 July 2017 not to revoke an earlier decision to cancel the applicant’s visa, is set aside and remitted for reconsideration on the following recommendations:
(a)delegate of the Minister is to provide the applicant with a formal warning of his current immigration status following the decision of this Tribunal; and
(b)a delegate of the Minister is to determine a period of time of which the applicant’s behaviour and re-offending will be monitored, so that should the applicant be convicted with any further offences of violence and/or dishonesty in the future, his visa will be cancelled.

I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

................................[sgd]................................
Associate
Dated: 14 November 2017

Date of hearing: 28 September 2017 and 17 October 2017

Applicant: In person

Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor

ANNEXURE A

0
P

1. G-13, pp. 70

[2017] AATA 2178

14 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Jurisdiction

Statutory Construction

Date of hearing:	28 September 2017 and 17 October 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor