Silao Robert Termorthy Sau and Minister for Immigration and Border Protection (Migration)

Silao Robert Termorthy Sau and Minister for Immigration and Border Protection (Migration) [2017] AATA 803 (2 June 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1640
Re:Silao Robert Termorthy Sau
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:2 June 2017
Place:Melbourne

The Tribunal affirms the decision under review to not to revoke the decision to cancel Mr Sau’s Class TY Subclass 444 Special Category (Temporary) visa.
[sgd]........................................................................
Egon Fice, Senior Member
IMMIGRATION AND BORDER PROTECTION – mandatory visa cancellation – character grounds – substantial criminal record – applicant convicted of various criminal offences, including offences involving violence – significant misconduct while in prison and immigration detention – where serious risk to Australian community if applicant re-offended – where Australian community would expect application to be refused – decision affirmed
Legislation
Migration Act 1958 (Cth) ss. 501, 501CA
Secondary Materials
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
2 June 2017

Mr Sau is a New Zealand citizen. He came to Australia in December 2009, aged 20 years. He had been granted a Class TY Subclass 444 Special Category (Temporary) visa.
In a letter dated 5 June 2014 the Department of Immigration and Border Protection (the Department) notified Mr Sau that because he had been convicted of a serious criminal offence, it may be necessary to consider cancellation of his visa under section 501 of the Migration Act 1958 (the Migration Act). The Department requested further information from Mr Sau so that it could determine whether consideration should be given to cancelling his visa.
In a letter dated 4 April 2016 the Department notified Mr Sau that his visa had been cancelled under s. 501(3A) of the Migration Act because the Department was satisfied that he did not pass the character test on the grounds set out in s. 501(6). The Minister was satisfied that Mr Sau had a substantial criminal record.
Section 501(3A) of the Migration Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    paragraph (6)(e) (sexually based offences involving a child); and
(iii)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Relevantly, s. 501(6) of the Migration Act provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7); or
(b)…
Section 501(7) sets out the circumstances in which a person is regarded as having a substantial criminal record. Relevantly, it provides:
For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)…
On 15 April 2016 Mr Sau lodged with the Department a Request for Revocation of a Mandatory Visa Cancellation under s. 501(3A). Section 501CA(3) provides that as soon as practicable after making the original decision, the Minister must invite the person to make representations about the revocation of the original decision.
A person whose visa has been cancelled may make representations to the Minister under s. 501CA(4) of the Migration Act seeking to have the visa cancellation decision revoked. Relevantly, s. 501CA provides:
(1)   This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving a sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(iii)                   …
On 10 March 2017 a delegate of the Minister made a decision not to revoke the decision to cancel Mr Sau’s Class TY Subclass 444 Special Category (Temporary) visa. On 23 March 2017 Mr Sau lodged an application with the Tribunal seeking review of the decision not to revoke the decision to cancel his visa. Section 500(1)(ba) of the Migration Act provides for review by the Tribunal of decisions made by a delegate of the Minister under s. 501CA(4).
In determining whether the decision made by a delegate of the Minister not to revoke Mr Sau’s visa cancellation was the preferable decision, I am required to follow the directions made by the Minister pursuant to s. 499 of the Migration Act. Relevantly, it provides:
(1) the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
(c)…
(2A) A person or body must comply with the direction under

subsection (1).
The current direction is Direction No. 65, made by Mr Scott Morrison, then the Minister for Immigration and Border Protection on 22 December 2014 (the Ministerial Direction).
MR SAU’S CRIMINAL OFFENDING
Mr Sau’s criminal record includes following recorded convictions:
On 25 November 2011
armed robbery
recklessly causing serious injury
armed robbery (3 charges)
arson
robbery (5 charges) armed robbery
On 24 February 2012
Robbery (two charges) recklessly cause serious injury
recklessly cause serious injury
shop theft-less than $600 (3 charges) theft from shop (shopsteal) act prejud sec/good order/management gaol
possess any thing w/o auth-police gaol
The total effective sentence of imprisonment amounted to 6 years and three months, some of that term to be served concurrently. Annex A to the Ministerial Direction deals with the application of the character test. Section 2 of Annex A provides the following regarding the application of the character test:
(2) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months (if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms)**; or…
In fact, the term of imprisonment for the 3 charges of armed robbery was 12 months on each count and the sentence for the 5 charges of armed robbery was nine months on each count, part of each count being served concurrently. Therefore, for the purposes of determining Mr Sau’s criminal record for the purposes of the Ministerial Direction, his total sentence of imprisonment amounted to 11 years and three months. The can be no doubt that his offending was serious.
I had in evidence the sentencing remarks of his Honour Judge Howie handed down on 25 November 2011 in the County Court. Mr Sau pleaded guilty to 8 charges of robbery,

3 charges of armed robbery, 1 charge of recklessly causing serious injury and 1 charge of arson, being 13 charges all told. Those offences were committed over a six-month period between 19 November 2010 and 19 May 2011.
The offences committed by Mr Sau are properly described as barbaric. They were brutal and cruel, inflicted on innocent citizens going about their ordinary business. The victims were punched, knocked to the ground and assaulted while on the ground. One of the victims suffered significant eye injury when fragments of his glasses penetrated his eye. Another victim was knocked to the ground when Mr Sau’s accomplice struck him in the head with a golf club as he lay on the ground. One victim was threatened with a bottle and was subsequently hit in the face with that bottle. On the same day, in the company of two other persons, Mr Sau approached a victim who was sitting in his car, smashing the window by punching it and pulling the victim from the car punching him in the mouth and kicking him in the ribs when he was on the ground. On the following day, Mr Sau and two of his accomplices pulled up next to a car which was parked. The victim was pulled from the car and assaulted while the three perpetrators drove off in his car. On the same day, the three perpetrators approached a taxi driver who was alighting from his car, punching him in the face and causing him to fall and strike his head on the ground. They drove the taxi a short distance, ransacked it and set fire to the interior. The car in which the perpetrators drove away was observed by police travelling at high speed. They gave chase and following the pursuit, the perpetrators abandoned the car. They were subsequently located hiding in a drain and arrested.
I should also mention a police report which referred to an assault which took place on 30 April 2011. The three victims were of Asian origin (as were most of the victims in the assaults I have referred to above) that had been dropped off by a taxi at their home address. A group of five persons, claimed to be of Maori origin, were walking along the street when one of the Asian males was accused of staring at the Maoris. That precipitated an assault. A male victim was punched, kicked and knocked to the ground and had his face stomped on. A female victim was also punched and kicked. Both were robbed of wallets, bags, purses and phones. The offenders walked off but were stopped by police shortly thereafter in a nearby street. Property belonging to the victims was recovered. All five offenders were arrested and conveyed to the Moorabbin police station where they were processed. Three offenders were charged and bailed, including Mr Sau.
There was no indication from Mr Sau that the offending would have ceased had it not been for the fact that he was arrested. That is despite the fact that it was acknowledged that when arrested, he cooperated with the police making full and frank admissions. According to Judge Howie, Mr Sau and his accomplices had consumed significant alcohol which, he suggested, together with the bravado generated by being in a group, contributed to some of the wild criminal behaviour. Furthermore, there was some planning involved in the assaults.
Judge Howie also referred to the victims indicating they experienced significant trauma. Not only did they suffer from their physical injuries, they were also traumatised and there are clearly ongoing effects resulting from that trauma. Some of the victims described continuing to experience fear.
CONDUCT WHILE IN DETENTION
In Mr Sau’s case, his conduct while on remand following his arrest and while in prison following sentencing, is significant and must be taken into account in determining his character. Section 501(6), which deals with the character test, includes the following:
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or…
A complaint was lodged against Mr Sau on 6 November 2011 when one of the persons on remand claimed he had been punched in the face. However, that complaint was apparently withdrawn and CCTV footage disclosed no evidence which would support a charge.
It appears that Mr Sau was detained at the police gaol situated at the Dandenong Magistrates’ Court when an incident took place on 24 February 2012. Mr Sau was observed igniting a match and lighting a cigarette inside the cell where smoking was not authorised.
On 23 February 2012, while at Fulham prison, Mr Sau was subject to a strip search which revealed that he had secreted on his person tobacco, papers and matches. He was charged with the breach of one of the regulations at that prison and fined $10.
On 9 March 2012 a prisoner complained to the shift manager saying he wanted protection, fearing for his safety. He said he had been threatened by two prisoners, one of which was Mr Sau. Nothing further appears to have been done other than Mr Sau was separated from the complainant.
Again while at Fulham, on 12 April 2012, when attending the medical centre Mr Sau requested a medical certificate. The nurse denied his request and Mr Sau became verbally abusive and said fuck you to the nurse and slammed the door violently when leaving. Nothing further was done about that.
A search of cells conducted at Fulham prison on 25 September 2012 disclosed a sharpened butter knife in the cell occupied by Mr Sau. Mr Sau was reprimanded but no further action was taken.
On 4 June 2013, while at Barwon prison, staff heard a commotion from a room where five prisoners, including Mr Sau, were involved in a physical altercation. Staff subdued and separated the prisoners. While reports were submitted and the police notified, the prisoner who was apparently the subject of the altercation made a statement saying he had no complaint. That ended the matter.
On 24 June 2013 at Port Phillip, Mr Sau was observed smoking in an unauthorised area. Following a disciplinary hearing, Mr Sau was fined $10.
On 28 May 2014, while conducting targeted searches in a cell at Loddon prison, officers located a tobacco pouch in which was found a white powder. Mr Sau shared the cell having only moved in the previous day. Testing of the substance proved it was 100% buprenorphine (commonly used for opiate dependence). While the report states the prisoner pleaded guilty to the offence and was fined $80 as well as losing contact visits for a period of 84 days, it is not clear whether the pouch belonged to Mr Sau or the other person who occupied the cell.
On 11 December 2014 at Port Phillip a prisoner complained that he required immediate protection from three other prisoners, one of whom was Mr Sau. He complained that they were attempting to collect a debt of $500 owed to them by a cellmate at Margoneet prison. No further action was taken at that time.
Finally, on 23 January 2015 in the course of a modified violence intervention program, Mr Sau apparently spoke about assaulting another prisoner. That was reported although no further action was taken.
On 12 September 2015 at Loddon prison, a prisoner who was asked to attend the office was noted to be limping. When asked about the limp, the prisoner responded that there were a couple of prisoners who wanted him to be their bitch and when he refused, those other prisoners punched and kicked him. They apparently told him that the punishment meted out to him was to help him man up. On the following day, staff at the prison observed three other prisoners entering the complainant’s cell. On attending, they found those three persons, which included Mr Sau, standing over the complainant who was seated on the chair. No further action appears to have been taken.
While in prison, Mr Sau’s risk assessment was stated as:
Propensity to or pattern of regularly using significant violence against others.
SERIOUS INCIDENT WHILE MR SAU WAS IN IMMIGRATION DETENTION
Although Mr Sau did not dispute that he did not meet the character test as described in

s. 501(6) of the Migration Act, there is one significant incident which occurred recently, while Mr Sau was in immigration detention, which must be taken into account when considering whether the discretion to revoke the mandatory visa cancellation should be exercised. As is explained at paragraph 5 in Annex A, Section 2 of the Ministerial Direction:
(2) The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3) In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
Whether or not a person was convicted, the behaviour of an applicant while in immigration detention plainly goes not only to the person’s character, but also to the veracity of claims made and accepted in the course of sentencing that the person is truly remorseful, fully aware of the consequences of his or her offending conduct, pledging never to embark upon that course of conduct again in the future. In the context of applications such as this one, it is significant in determining whether the applicant is at risk of reoffending, particularly where the person has stated that they have now remediated any character flaws which they may have previously exhibited.
Among the supplementary G documents lodged by the Minister’s legal representatives was a CCTV recording of an incident which took place at the Christmas Island detention centre on 20 July 2016. The camera appears to be at the ground level of a multi-level building and a number of detainees appear to be present in a fairly large open area of the building at ground level. There is plainly a commotion on the level above as they all look up towards it. Behind large open doors at ground level, on the right side from the camera’s view, there is what appears to be a staircase leading up to the next level. A number of detainees at the ground level then run towards the staircase. One of those persons is Mr Sau who is wearing sunglasses and a baseball cap in the reverse manner. Three of the detainees appear to be waiting for a person to come down the stairs and, although not in full view, it appears that two of those detainees then throw a punch at the person descending the stairs. The victim, wearing a maroon coloured T-shirt, then emerges from the staircase and he is set upon by those standing around at the base of the staircase. Mr Sau is amongst those actively engaged in assaulting that person. Mr Sau is seen attempting and succeeding in pulling that person to the ground. As the victim lies on the ground, Mr Sau is seen to stomp twice on the victim’s head. When staff at the facility breakup the fracas and the victim is helped to his feet, it is obvious that he has been injured and there is blood to be seen, at least on his left hand. There is no doubt that this is properly described as a very serious assault.
At the hearing of this matter Mr Sau said he had not seen the video but that a copy of it had been sent to the detention centre and there was equipment present which would allow him to view it. I granted a brief adjournment to allow that to happen. After Mr Sau had seen the video, I asked him about his involvement and he said it was simply a case of self–defence, to stop [the person] from hurting anyone else. He stated that he was particularly concerned for others’ safety as there had been a female Serco officer present. He then described the female Serco officer as coming and breaking up the fight. When I put to Mr Sau that his version was that he and the Serco officer stopped the fight, his response was: yeah that’s it. When I put to Mr Sau that it appears he prevented the person from coming down the stairs onto the ground level by hitting him, he agreed with that. He explained that the victim had a weapon, a shard from a broken plastic plate. However, no such weapon was in evidence even though I examined the CCTV footage frame by frame. The victim was clearly unarmed at the time he arrived at the bottom of stairs.

Furthermore, Mr Sau’s account of the incident does not record with what is plainly evident on a very good quality CCTV. At the beginning, it shows Mr Sau along with two or possibly three others moving quickly towards the door which leads to the staircase and then waiting there for the victim to come down the stairs. As he descends, Mr Sau and another of those detainees, throw a punch at the victim. The victim is then prevented from going much further onto that level and Mr Sau is seen to actively restrain him and then drag him backwards when he falls to the ground. Mr Sau is then seen to move closer to the victim and stomp on his head with his right foot. The Serco officer does not arrive until after Mr Sau has withdrawn from his attack and, in fact, Mr Sau stands back and moves away while the officer attempts to prevent others from continuing to attack the victim. He makes no attempt whatsoever to assist the officer.
Plainly, this was a brutal attack and had nothing to do with self-defence. I consider that Mr Sau’s characterisation of his behaviour as acting in self-defence is an attempt to minimise the nature of his conduct, as well as the impact it had on his victim.
I also had in evidence an Incident Detail Report made by the Detainee Service Manager at the Christmas Island detention centre. That report states that the Serco officer (Detainee Service Officer) attended the upstairs area of the detention block when there was some yelling and noise coming from that area. The report states that some detainees had hold of the victim by his T-shirt while others were punching him in the chest area. The Serco officer apparently said that she saw what appeared to be a shard of plastic about 8 inches in length, white in colour and was consistent with a broken dinner plate. However, certainly by the time the victim came to the bottom of the staircase and was assault by those waiting for him, no such weapon was to be seen. Furthermore, by the time the Serco officer arrived on the scene at the lower level, any involvement Mr Sau had with the victim had ceased.
The report also states that the victim was subsequently escorted to the medical facility and an ambulance was arranged due to his injuries. He was taken to Christmas Island regional Hospital where he was admitted for observation.
When I put to Mr Sau that he seemed to have a very active, if not dominant role in the incident on the ground level, he responded that it had been a stupid decision on his part. He further told the Tribunal that he should not have been there in the first place.
APPLICATION OF THE MINISTERIAL DIRECTION
Part C of the Ministerial Direction sets out the factors which must be considered in making a revocation decision under s. 501CA of the Migration Act. It comprises what are described as primary considerations and other considerations. Paragraph 13 of the Ministerial Direction states:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The power to revoke the mandatory decision made by a delegate of the Minister is clearly discretionary. Ministerial Direction 65, at Section 2, explains how that discretion must be exercised. Paragraph 8 relevantly provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa would generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary consideration should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 13.1 of the Ministerial Direction states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
There can be no doubt that Mr Sau’s offending must be regarded as serious and that is, no doubt, the reason why his visa was cancelled without notice, ensuring that he remained in detention thus ensuring protection of the Australian community.
Nature and seriousness of Mr Sau’s conduct to date
Paragraph 13.1.1 of the Ministerial Direction sets out the factors to which I must have regard when considering the seriousness of the offending. It states that crimes of violence must be viewed seriously, particularly if they are committed against vulnerable members of the community. The sentence imposed for convictions is an indicator of the level of seriousness. So too is the frequency of the offending and whether there is a trend of increasing seriousness. Mr Sau’s head sentence when tried in the County Court was a total of five years and one month. In his sentencing remarks, Judge Howie said that but for Mr Sau’s plea of guilty, the term of imprisonment would have been seven years and four months. In addition, upon his conviction by the Dandenong Magistrates Court, Mr Sau was sentenced to a further 12 months imprisonment.
The reports prepared by the police after interviewing the victims of Mr Sau’s offending graphically illustrate the callous and violent assault perpetrated on innocent people for no reason other than that they appeared to be easy targets. Serious injuries were suffered by some victims and one report records the victim not being able to provide a statement due to his injuries, including head injuries. Mr Sau’s conduct in the course of the offending, while only over a relatively short period of some six months, which may have continued for longer had he not been arrested, was brutal with a callous disregard for the innocent victims.
Mr Sau attempted to explain his conduct in a statement prepared on 15 April 2016.
Mr Sau said he was only 21 years of age at the time of the offending; was easily influenced; and became involved with what he described as the wrong group of acquaintances. He also said he was drinking large quantities of alcohol on a daily basis and he attributed his conduct to the effect of that alcohol. Mr Sau said his family and friends attempted to help, giving him advice and lecturing him about associating with the people who were also involved in the violent offending, but he refused to accept their advice.
Mr Sau also provided a brief hand-written statement about the incidents in which he was involved while in prison. He described those incidents as minor. He said four of the incidents arose because others attempted to assault him and he acted in self-defence. He also attributed the incidents to the pressure of gangs wanting him to join them and his refusal to do so. Mr Sau also said that the incidents which involved damaging prison property were due to family problems and relationships, although he did not elaborate on those.
While I am not aware of any charges having been brought against Mr Sau for the assault committed when he was in immigration detention at Christmas Island, the video evidence of that event disclosed Mr Sau acting in a violent and extreme manner in conjunction with others against an unarmed person. Although Mr Sau attempted to make much of the fact that the victim in that case was armed, at the time of Mr Sau’s voluntary involvement in that assault, there was no evidence of any weapon. It clearly disclosed Mr Sau as a willing participant without provocation or urging by any other persons. The assault was brutal and caused the victim to be injured to the extent that he had to be taken to hospital. This was no minor incident.
RISK TO THE AUSTRALIAN COMMUNITY
Paragraph 13.1.2 states the following:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that the risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).
The first point I must make is that the nature of Mr Sau’s offending, which included armed robbery and assault on the victims, resulted in serious harm to those victims in some cases and could easily have been far worse. Having viewed Mr Sau’s assault on the person at Christmas Island, taking into account his substantial physical size, and the brutal way in which he stomped on the victim’s head, could have resulted in an outcome far more serious than it was. In my opinion, the harm that may be caused by Mr Sau if that conduct were repeated is plainly unacceptable.
Although Mr Sau said in his evidence that he had completed a violence management program over a period of six months, I did not have evidence of any document which indicated that he successfully completed the course. There was evidence before me that he was involved in such program. In any event, the incident which took place on Christmas Island occurred after he completed a violence management program. What it demonstrates is that the program has had no effect on him whatsoever. That behaviour is also consistent with a report from Corrections Victoria where it described, as I have noted above, Mr Sau as a prisoner with a propensity to or pattern of regularly using significant violence against others. I have already mentioned above the incidents which took place while he was in prison and, although perhaps regarded as relatively minor, display a continuing pattern of violent behaviour which Mr Sau appears unable to control.
Judge Howie, in his sentencing remarks, referred to a psychological report following tests conducted while Mr Sau was in prison. The psychologist found that Mr Sau was cognitively and emotionally immature. It also found that his judgement and reasoning skills were limited and that he was influenced by others. The psychologist said that she believed Mr Sau was genuine in the shame and regret he expressed about his offending. It seems, based on that report, his Honour Judge Howie said that Mr Sau, being a young offender with no prior convictions and good family support, had good prospects for rehabilitation.
In a letter dated 15 April 2016 addressed to the National Character Consideration Centre, Mr Sau said:
I truly believe I am a different person now, everything I have learned from addressing my offending behaviour and also the support of my family have been the reasons for this. I have changed my life, and my family have been a big part of this, they’ve been there for me for the last five years and I don’t know what I would do without them.… I owe my family so much and deeply regret getting involved in the criminal offences, I apologize to everyone whom was affected by my actions.
In the hand-written letter dated 25 July 2016, Mr Sau said:
During my time in prison I have completed the violence program and I’ve learnt everything from the program which change [sic] my whole life around, and I’m not the person I use [sic] to be, I am a completely whole new person and am fully rehabilitated.
I should point out that this letter seems to be dated four days after the incident at immigration detention on Christmas Island.
It is clear from the above evidence that Mr Sau’s statements about being rehabilitated and being remorseful are not supported by his involvement in a number of incidents, some of them involving violence, since his conviction for violent offending.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
According to the Ministerial Direction, this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision not to revoke the mandatory cancellation decision was made or is expected to be made. The factors considered to be relevant are those set out at paragraph 13.2(4) of the Ministerial Direction. Those factors relevant in Mr Sau’s case are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
…
(c)The impact of the non-Citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
…
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
Mr Sau does not have children of his own. The children involved in this case are his nieces and nephews. Save for statements made by Mr Sau, I did not have evidence from the parents of those children or from the children indicating their involvement with Mr Sau.
Even the statements made by Mr Sau did not indicate the level of engagement had with those children. He simply said that he needed to be a positive influence in their lives and that he needed to be the older brother to look after them. The Minister’s Delegate, who made the decision not to revoke the cancellation of Mr Sau’s visa, also said that Mr Sau had not described the strength of his relationships with his nieces and nephews. The delegate nevertheless found that it was in the best interests of Mr Sau’s minor nieces and nephews that his visa cancellation be revoked in order to allow those children to develop or maintain a relationship with him. With respect to the Delegate, that statement does not provide a reason for finding that it was in the best interest of those children that Mr Sau remain in Australia.
In fact, on the hearing of this matter, Mr Cunynghame, who appeared on behalf of the Minister, submitted that the statement made by the Minister’s Delegate regarding the interests of minor children should not be accepted. For the reasons I have stated above, I agree. There was no evidence before me to support that statement. It is simply a subjective view.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 of the Ministerial Direction deals with the expectations of the Australian community. Relevantly, it provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the government’s views in this respect.
I should also refer to the general statement of principles which must be considered when applying the Ministerial Direction. Paragraph 6.3 sets out those principles. Those relevant to Mr Sau’s case are:
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Mr Sau’s contribution to the Australian community prior to commencing his criminal offending is minimal. Mr Sau arrived in Australia in December 2009 and between 2010 and 2011 was employed in a company which conducted a bakery. However, his first offending commenced in November 2010, some 11 months after first arriving in Australia. He was taken into custody prior to trial spending 191 days on remand. Since then, he has spent time either in prison or in immigration detention. Plainly, Mr Sau’s contribution to the Australian community is negligible.
Furthermore, given that he had only been contributing to the Australian community for a very short period of time prior to offending, I accept that the Australian community would have a low tolerance for his offending, particularly given the serious and violent nature of that offending.
OTHER CONSIDERATIONS
Paragraph 14 of the Ministerial Direction sets out the Other Considerations which may be relevant. It provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
…
(e)Extent of impediments it removed.
International non-refoulement obligations
Mr Sau is a citizen of New Zealand. Accordingly, there are no non-refoulement obligations which arise. There would be no adverse consequences visited upon Mr Sau as a result of his return to New Zealand.
Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Ministerial Direction sets out a number of matters to which I must have regard. Relevantly, it provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-Citizen’s immediate family in Australia (with those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

On the first point to which I must have regard, Mr Sau commenced his criminal offending within 12 months of first arriving in Australia. Although he was a young man at that time, he certainly was not a young child. Therefore, as stated in the Ministerial Direction, less weight must be given to this consideration in Mr Sau’s case.
Secondly, because Mr Sau was taken into custody in about May 2011 (at sentence date, 25 November 2011, he had been in custody for 191 days), his contribution to the Australian community is not significant, given he arrived in Australia in December 2009. He was employed in a bakery between 2010 and 2011. He also told the Tribunal during the hearing that he played music and rugby for some time before being incarcerated.
Finally, regarding family ties and social links with persons resident in Australia, Mr Sau has no immediate family members in Australia. His brother and sister now live in the United States of America., He does have, however, numerous uncles, aunts, nephews and nieces in Australia. According to Mr Sau, both his parents are now deceased. I did not have evidence from any of those persons indicating Mr Sau’s ties with them. However, that may simply have been because Mr Sau was not legally represented and was not informed that those persons might provide a statement in support of his application. I can mention that a number of apparently family members, that is, more distant family members such as those described above, did attend the hearing. While they requested that they be heard, I explained that unless a written statement had been given to the Minister’s representatives at least two business days before the hearing, I could not have regard to their evidence. That is clearly stated in s. 500(6H) of the Migration Act. I declined that request.
In a written statement dated 20 June 2014, Mr Sau claimed that he had established connections with his extended family in Australia and was of the view that with their support, he was convinced that he would not see himself going back to the conduct which led to his incarceration. While Mr Sau may well hold that view, the problem is that he had the support of his extended family while he was committing very serious offences for which he was convicted. Furthermore, his violent behaviour as exhibited in the CCTV footage from Christmas Island gives me no confidence that any of his extended family members would be of positive assistance to him should he remain in Australia.
When asked what he would like to do if he were to be released back into the Australian community, Mr Sau responded that he was planning on resuming tertiary studies. He also mentioned the possibility of enrolling in a personal training course. Although these remarks by Mr Sau are indicative of some degree of planning for a more positive contribution to the community if released, I can regard them as, at best, speculative aspirations only.
Extent of impediments if returned to New Zealand
Mr Sau expressed concern about being returned to New Zealand because he had no close relatives remaining in that country. He said he would not know what to do when he arrived there, and did not have a place to live or to work. Mr Sau was also concerned that if returned to New Zealand where he claimed he had no family support, there was a very high risk that he would return to criminal offending. The problem with those submissions is that Mr Sau had extensive extended family support in Australia but nevertheless became involved in very serious criminal offending.
As for basic living standards and economic support, I had no evidence before me which would suggest that it is any different to that available in Australia. As was submitted on behalf of the Minister, Mr Sau has spent most of his life living in New Zealand and claimed he had attended university as well as being involved in rugby and church activities. Clearly he will not experience any cultural or language barriers should he be returned.
Mr Sau also submitted that it was likely he would be coerced into joining a gang on his return to New Zealand and his criminal activities would then resume. With respect to Mr Sau, the same concern clearly arises if he were permitted to remain in Australia. That problem is not unique to New Zealand. It is the same problem which led, in part, to his criminal behaviour in Australia.
CONCLUSIONS
There was no dispute that Mr Sau did not pass the character test as described in s. 501(6) of the Migration Act. Therefore, the Minister was required to cancel his visa pursuant to
s. 501(3A). Therefore, the only question before me is whether the decision not to revoke the Minister’s decision to cancel Mr Sau’s Visa was the preferable decision. In coming to that decision, I must have regard to the considerations set out in the Ministerial Direction.
I have found that the criminal offences of which Mr Sau was convicted were brutal and perpetrated on innocent victims who had no way of defending themselves. Although Mr Sau attempted, at least in part, to lay blame on the fact that he was relatively young at that stage (21) and easily influenced; and that he got in with the wrong group of persons and was drinking large quantities of alcohol, that provides no excuse for his conduct. Furthermore, the police records in evidence show that he was not exactly a model prisoner, although I accept that his offending while imprisoned was, relatively, minor.
Despite the sentencing Judge’s remarks regarding a psychologist’s views that Mr Sau had good prospects for rehabilitation, his subsequent conduct suggests that assessment was incorrect. His involvement in the altercation while in immigration detention on Christmas Island bears testimony to that. His violent behaviour depicted in the CCTV footage indicates he has not overcome his propensity for violence. He was clearly a voluntary participant in that altercation and the brutality exhibited towards the victim was astonishing. That is more particularly so when he was at that time plainly aware that his visa had been cancelled and his application was pending to this Tribunal. As in his other criminal offending, he sought to apportion blame to the victim stating that he was armed. I have found there was no evidence of that.
I have also found that Mr Sau’s statements about being rehabilitated and remorseful were simply statements. They are not supported by his conduct. Therefore, I find that Mr Sau does present a serious risk to the Australian community should he be allowed to remain in Australia.
Mr Sau does not have any children of his own. Nevertheless, he referred to the interests of minor children in Australia by way of reference to his nieces and nephews who are Australian citizens. However, there was no evidence before me regarding his involvement with those children. There is no basis for the finding that it is in the best interests of those children that Mr Sau remains in Australia. Furthermore, given what appears to be a propensity for violence, I find that it is probably not in the interests of his nephews and nieces that he remains in Australia. He is likely to be a bad example to them.
Given the brutal nature of the assaults Mr Sau perpetrated on innocent victims, I find that the Australian community would expect Mr Sau to be returned to New Zealand.
As for the other considerations, which should be given less weight than the primary considerations, I have found none of those supports my finding that the Minister’s decision to revoke Mr Sau’s visa should be revoked. Mr Sau has limited ties to Australia, having been present in this country for only a very short period before his offending commenced. In addition, although he claimed that most of his extended family now lives in Australia, I did not have any evidence before me indicating the strength or nature of those ties.
There are no non-refoulement considerations in this case.
I have also found there are no impediments to Mr Sau returning to New Zealand. His situation if returned to New Zealand would, essentially, be the same as it was prior to his departure from New Zealand in 2009.
I find that the decision made by a delegate of the Minister on 10 March 2017 not to revoke the decision to cancel Mr Sau’s Class TY Subclass 444 Special Category (Temporary) Visa was the preferable decision. I affirm that decision.

88. I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

[sgd]…........................................
Associate
Dated 2 June 2017

Date of hearing 22 May 2017

Applicant In Person

Advocate for the Respondent
Mr Adam Cunynghame

Solicitors for the Respondent Sparke Helmore

[2017] AATA 803

2 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing	22 May 2017
Applicant	In Person
Advocate for the Respondent	Mr Adam Cunynghame
Solicitors for the Respondent	Sparke Helmore