Sipanisi and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1434

Sipanisi and Minister for Immigration and Border Protection (Migration) [2017] AATA 1434 (8 September 2017)

Division:GENERAL DIVISION

File Number:           2017/3680

Re:Alavini Fonokalafi Sipanisi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:8 September 2017

Place:Melbourne

The Tribunal affirms the decision under review.

.............................[sgd]...........................................

Miss E A Shanahan, Member

MIGRATION – Mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa – request for revocation of mandatory cancellation – substantial criminal record – drug and alcohol abuse - convicted for multiple offences in February 2016 – detained in youth justice centre for 20 months – previous convictions and shorter sentences for offences in 2013 and 2014 – convicted of assault, criminal damage and arson while imprisoned – unacceptable risk of re-offending – acquisition of training, certificates of competence and higher secondary education in prison – New Zealand citizen – protection of Australian community – expectations of Australian community – decision affirmed

LEGISLATION 

Migration Act 1958(Cth); s 499, 501, 501CA

CASES

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999

SECONDARY MATERIALS

Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)

REASONS FOR DECISION

Miss E A Shanahan, Member

8 September 2017

1. On 30 June 2016 Mr Alavini Fonokalafi Sipanisi was notified of the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth) (the Act). On 26 February 2016, he had been sentenced to imprisonment for 20 months for a number of offences. As a result, he had a substantial criminal record and thereby failed the character test.

2. Having been invited by the delegate of the Minister for Immigration and Border Protection (the Minister) to make representations as to why this cancellation should be revoked (in accordance with s 501CA(3)(b) of the Act), Mr Sipanisi lodged a request for revocation of the mandatory cancellation with the Minister on 21 July 2016. Between that date and 31 May 2017, various submissions and detailed supporting documentation were provided to the Minister by Mr Sipanisi and his representatives. The delegate of the Minister considered Mr Sipanisi’s representations and documentation and found that he did not pass the character test and that there was no other reason the mandatory cancellation should be revoked. Accordingly, on 6 June 2017, the delegate decided to not revoke the mandatory cancellation of Mr Sipanisi’s visa. On 22 July 2017, Mr Sipanisi lodged an application for review of that decision with the Tribunal.

3. At the hearing on 31 August 2017 Ms Michelle Jenkins of counsel instructed by AUM Lawyers appeared for Mr Sipanisi and Ms Phoebe Richards, solicitor with Clayton Utz, appeared for the Minister. The Minister provided paginated G-Documents and two volumes of summonsed documents. Both parties tendered further documents, a full list of which is appended to this decision. Mr Sipanisi, Ms Viviena Niupalau, Ms Lovely Singh and Mr Karnail Singh all gave oral evidence at the hearing.

   BACKGROUND TO THE APPLICATION

4. Mr Sipanisi arrived in Australia on 6 March 2013 at the age of 15 years. His parents live in New Zealand, are citizens of Tonga and have been residents of New Zealand for several decades. They sent their only son to live with his sister Viviena in Australia as they and their daughter Mele had been unable to deal with his behaviour in general, his truancy from school and his involvement in gang “conflicts”. His stay with Viviena was not successful and after his release from youth detention in October 2014 went to live with his paternal aunt Lovely Singh and her husband.

5. Mr Sipanisi, known as and referred to in most reports including the official police records as Vinny Fonokalafi, had commenced drinking alcohol at age 12 and using cannabis intermittently at 13.

6. After his arrival in Australia he participated in a drug and alcohol counselling programme, despite which he commenced using crystal methamphetamine and occasionally cocaine in January 2014. 

7. Following his arrival in Australia, Mr Sipanisi had attempted to enrol in further education, it being said that he had completed year 10 in New Zealand. He was not accepted because of “bad reports” received from his school in New Zealand.

8. Mr Sipanisi underwent cognitive testing by a Dr Peter Dowling in preparation for a Children’s Court hearing in 2014. Dr Dowling scored Mr Sipanisi as being of low average intelligence with an IQ (intelligence quotient) of 85.  Mr Sipanisi’s reading abilities were assessed as being late primary/early secondary level but sufficient to manage every day community demands.

9. Mr Sipanisi’s criminal offending commenced on 14 August 2013, when he committed a number of property and violent offences, being: three counts of attempt to commit indictable offence, three counts of criminal damage (intent damage/destroy), affray (common law), possessing a dangerous article in a public place, and assault with a weapon. These charges were heard in the Sunshine Children’s Court on 21 July 2014 and resulted in a 3 month detention in a Youth Justice Centre (YJC). On the same date, Mr Sipanisi was also convicted of a number of other offences committed between 9 September 2013 and 9 April 2014. These offences included multiple counts of robbery, intentionally causing injury, affray, and several other offences. Some of his offending involved violence and even threatening with an axe on one occasion. The total effective sentence arising out of the 21 July 2014 sentencing was a 15 month period of detention in a YJC.

10. On 26 February 2016 multiple convictions for armed robbery, handling stolen goods, use of a firearm, assault by kicking and theft of a motor vehicle resulted in a 20 month period of detention in a YJC. As he had been held on remand for 136 days his deemed date of release was then in June 2017.

11. While imprisoned Mr Sipanisi has committed further offences of unlawful assault on 4 January 2016 and 6 May 2016, criminal damage on 20 September 2016 and arson and property damage to another YJC on 25 January 2017. He was convicted and sentenced to a further one month detention in a YJC (concurrent) on each of these charges. It is said he has not re-offended since January 2017.

12. During the term of his imprisonment Mr Sipanisi availed himself of the educational facilities provided by the YJC’s. He has kept very fit by regular gymnasium attendance and has the physical build of a weight-lifter. Until May 2017 he was engaged in the Victorian Certificate of Applied Learning (VCAL), completing subjects he selected, these being mainly in construction and building. VCAL is said to be the equivalent of year 11 to 12 of secondary education leading to further TAFE education. He also attended music classes. He plays the guitar and composes and sings his compositions. These efforts have been lauded by his teachers.

13. Mr Sipinasi has obtained several certificates as a result of his studies, having completed study in the Responsible Service of Alcohol Program; a Licence to perform High Risk Work and the completion, by attendance, of multiple subjects which unfortunately do not report the standard achieved. His involvement with these classes diminished after he was advised in June 2016 of the pending cancellation of his visa.

14. Mr Sipanisi has expressed remorse for his offending in his submissions to the delegate. Family members resident in Australia, notably his aunt Lovely Singh and her husband Karnail Singh, have indicated their willingness to provide accommodation, guidance and supervision should the visa cancellation be revoked. They have made enquiries regarding Mr Sipanisi’s future employment. A friend of Mr Singh has proposed employment as an on-site handy-man for some 200 properties he services. There is also potential employment with a builder friend of Mr Singh.

15. The documented offences committed by Mr Sipanisi, and subsequent court outcomes, can be summarised as follows:

DATE OF OUTCOME	COURT	OFFENCE/S	OUTCOME
21 July 2014	Sunshine Children’s Court	Attempt to commit indictable offence (x2) Criminal damage (intent damage/destroy) (x3) Affray (common law) Possess dangerous article in public place Assault with weapon Intentionally damage property Robbery Intentionally cause injury (x2) Obtain property by deception (x6) Affray (common law) (x2) Unlawful assault Intentionally damage property Intentionally cause serious injury Robbery Robbery Recklessly cause injury Attempt to commit indictable offence Robbery	Convicted and detained in YJC for 3 months on each charge. Convicted and detained in YJC for 3 months. Convicted and detained in YJC for 1 month. Convicted and detained in YJC for 9 months on each charge. Convicted and detained in YJC for 9 months, 3 months concurrent. Convicted and detained in YJC for 9 months. Convicted and detained in YJC for 6 months. Pay compensation of $450.00. Convicted and detained in YJC for 6 months. Convicted and detained in YJC for 3 months. Convicted and detained in YJC for 9 months. Effective total term of 15 months.
26 February 2016	Melbourne Children’s Court	Armed robbery Prohibited person in possession of a firearm (x2) Theft of a motor vehicle (x2) Armed robbery Armed robbery (x2) Unlicensed driving Armed robbery Handle/receive/dispose of stolen goods	Convicted and detained in YJC for 8 months. Convicted and detained in YJC for 4 months on each charge. Convicted and detained in YJC for 20 months. Convicted and detained in YJC for 12 months on each charge. Convicted and detained in YJC for 1 month. Convicted and detained in YJC for 12 months. Convicted and detained in YJC for 2 months. Effective total term of 20 months.
29 February 2016	Kyneton Magistrates’ Court	Unlawful assault (x2) Assault by kicking	Convicted and detained in YJC for 4 months on each charge. Effective total term of 4 months.
6 October 2016	Bendigo Magistrates’ Court	Unlawful assault (x2)	Convicted and detained in Youth Training Centre for 1 month.
17 May 2017	Bendigo Magistrates’ Court	Criminal damage (intent damage/destroy) (x2) Criminal damage by fire (arson)	Aggregate 1 month imprisonment, cumulative on sentences being served at the time.

1. It is to be noted that all charges and convictions recorded in the LEAP Victorian Police records are in the name of Vinny Fonakalifi, date of birth 6 July 1995, whereas the claimed date of birth as entered in his passport is 6 July 1997.

   ORAL EVIDENCE

   Mr Sipanisi

2. Mr Sipanisi has provided several statements over the past 12 months, the most detailed of which was that provided on 21 July 2016 wherein he expressed his remorse for his offending, his intentions to pursue further education and to obtain work in Australia with the help of family and service providers. He confirmed he had obtained qualifications in High Risk Work, Fork-Lift Driving, Responsible Service of Alcohol and an Occupational Health and Safety White Card.

3. In his evidence before the Tribunal, he acknowledged all of the offences leading to charges and periods of imprisonment in the juvenile justice system. However he had no recollection of any of the crimes he committed as he had been intoxicated on each occasion. He was unaware that he had stolen an amount of $53,000 as he hadn’t counted it.

4. He was aware of the potential jobs his uncle had identified but did not know where they were located. He had spoken with support services in particular the Jesuit Social Service who take him around where he needed to go.

5. With respect to ongoing educational opportunities should he return to New Zealand, Mr Sipanisi was unaware of what was available but said his parents would not encourage or support him in this pursuit as their time was occupied in caring for his nieces and nephews on a full-time basis.

6. Mr Sipanisi’s greatest fear should he return to New Zealand was that he would be forced to join a criminal gang in the Auckland area where his parents lived. In his statement dated 22 August 2017, he stated that: [y]oung men of Tongan background are expected to become involved in gangs that operate in our home area. If you do not support the gangs, you can face many issues.

7. When questioned about the likelihood of him re-offending if he stayed in Australia he said he was now grown-up and didn’t want to be locked up again.

8. Mr Sipanisi attributed his further offences of property damage, physical assaults and arson while in prison during 2017 to the stress arising from the relocation of juvenile prisoners involved in the Parkville Centre riot to Malmsbury combined with the notification of the mandatory cancellation of his visa in June 2016.

   Ms Viviena Niupalau

9. Ms Niupalau is the youngest of Mr Sipanisi’s three sisters. When he first arrived in Melbourne he lived with her and her husband. Ms Niupalau had been reared by her grandparents in Tonga from age three months until age 12 when she returned to her parents in New Zealand to undertake her secondary education. She had spent the two previous years in Australia with Ms Singh. She is 7 years older than her brother. She returned to live with Ms Singh in 2008 having been taken out of school by her parents as punishment for drinking alcohol.

10. Despite her efforts to involve her brother in their Church and rugby, he had associated with a group in Sunshine who were a bad influence. Mr Sipanisi became involved in criminal activity and was taken into custody in September 2013. Ms Niupalau arranged for her brother to live with Ms Singh following his release from Youth Detention in 2014 as she was struggling to cope with her child. Initially, Mr Sipanisi had done well in Ms Singh’s care but again mixed with the wrong people and committed further offences.

11. Ms Niupalau said she had visited her brother in jail approximately every two weeks accompanied by her son aged five and daughter aged two. She believed Mr Sipanisi had changed, was now family orientated and greatly valued education opportunities. She did not believe her parents would support her brother’s educational pursuits and feared he would join an ethnic gang if returned to New Zealand. She had no knowledge of the availability of continuing educational possibilities in New Zealand having not lived there since 2008.

12. Ms Niupalau agreed that her brother, despite having promised he would not re-offend, had repeatedly done so.

    Ms Lovely Singh

13. Ms Singh is the sister of Mr Sipanisi’s father. She has lived in Australia since 1996 and is an Australian citizen. She has provided several statements the most recent being that of 21 August 2017. Mr Sipanisi commenced living with the Singh family in October 2014. Initially, he attended church regularly and recommenced high school but again mixed with youths who were a bad influence and he soon re-offended.

14. Ms Singh had visited Mr Sipanisi fortnightly while at Malmsbury and in the Metropolitan Remand Centre. She said she had observed a change in Mr Sipanisi and that he had matured. He expressed remorse, greatly valued the benefits of education and has realised he has wasted his time.

15. Ms Singh would provide both accommodation and supervision of Mr Sipanisi should he be allowed to stay in Australia. She said she would be stricter with him than previously but agreed he had re-offended while living with her. To her knowledge, Mr Sipanisi’s co-offenders now lived a 20 minute drive away from her home.

    Mr Karnail Singh

16. Mr Singh’s statements are very similar to those of his wife and he also commits to providing ongoing support to Mr Sipanisi, both in regard to his further education and efforts to obtain employment. In his evidence to the Tribunal Mr Singh confirmed the content of his latest statement regarding enquiries he has made in relation to employment opportunities for his nephew. A friend of Mr Singh’s has a caretaking business servicing 200 properties and would be prepared to employ Mr Sipanisi as a caretaker/maintenance worker when his son, who currently performs these duties, returns to university. Mr Singh also has a builder friend who works in the Tarneit district who could provide building work.

    DOCUMENTARY EVIDENCE

17. While there is a large volume of documentary evidence addressing Mr Sipanisi’s abilities, educational standards, leadership qualities and various assessments by detention authorities, almost all of it was amassed for the purpose his submissions of July 2016 in response to the mandatory cancellation of his visa. This preceded his further criminal offending on 20 September 2016 and 25 January 2017 and subsequent conviction on 17 May 2017 while detained at Malmsbury YJC. The Tribunal has referred to some reports under BACKGROUND TO THE APPLICATION and will detail the reports of Elise Truong, the statement of Mr Sipanisi's parents dated 16 October 2016 and that of Jennifer Crehan and Eva West, Youth Justice Case Manager and Unit Manager respectively, entitled Suitability for Youth Justice Centre Order dated 23 September 2016.

    Ms Elise Truong

18. Ms Truong who is the Lead Teacher of the Malmsbury section of Parkville College provided an undated statement that appears to have been prepared for the July 2016 response to the cancellation of Mr Sipanisi’s visa. Ms Truong confirmed that Mr Sipanisi had completed his VCAL at Intermediate level and was pursuing the year 12 VCAL. She described him as a natural leader who was achieving terrific results with strength in business management studies, improving numeracy, musical talents and physical education and personal training.

    Lisia and Nikola Fonokalafi

19. On 18 October 2016 Mr Sipanisi’s parents wrote to the Malmsbury Youth Justice Centre apologising for his behaviour but advising that they believed he had changed and was remorseful for the crime he has done. They supported his request to stay in Australia as they had intentions to move to Australia to reside with Ms Singh and their son. Should he return to New Zealand they feared he would again be involved in violence.

    Pre-Sentence report of 23 September 2016

20. This Report authored by Ms Crehan and Ms West involved consideration of a wide variety of sources of information including Mr Sipanisi, Ms Singh and Departmental files. They concluded that Mr Sipanisi was an unsuitable candidate for a Youth Justice Centre Order in light of the inconsistencies demonstrated in terms of behaviour and engagement with supports. In their 11 page analysis, they addressed the assessment that he had entrenched criminal behaviour; poor prospects for rehabilitation given his failure to follow through with scheduled appointments; poor behavioural and emotional control; low average intelligence and failure to demonstrate long-term behavioural improvement despite his professed intention to reform. He had resisted transfer to an adult prison despite his age as he said that, if in an adult prison, he would gravitate towards other prisoners who are also of an Islander background and will do “whatever they do”.

    RELEVANT LAW

21. With regard to the mandatory cancellation of visas, s 501 of the Act states that:

    (3A)The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

    …

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7))…

    …

1. Section 501(7)(c) provides that a person has a substantial criminal record where:

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or ...

2. With regard to the revocation of mandatory cancellation, section 501CA relevantly provides:

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

   (a)would be the reason, or a part of the reason, for making the original decision; and

   (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)a written notice that sets out the original decision; and

   (ii)particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (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.

   (5)If the Minister revokes the original decision, the original decision is taken not to have been made.

   Direction No 65 of the Migration Act 1958

3. Under s 499(1) of the Migration Act, the Minister may make directions to a person or body having functions or powers under the Migration Act about the performance of their functions or the exercise of their powers. Under s 499(2A), decision makers, including the Tribunal, must comply with a direction made under s 499(1). Direction No 65 (the Direction) was made on 22 December 2014 and came into effect in June 2015. Paragraph 6.2(1) of the Direction states 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.  The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

4. Paragraph 6.2(3) provides that the principles referred to above provide a framework within which decision makers should approach their task of, amongst other things, deciding whether to revoke a mandatory cancellation under s 501CA of the Migration Act. Those principles to achieve this protection are set out in paragraph 6.3(1) to 6.3(7) of the Direction:

   6.3      Principles

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. 

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

5. In determining whether or not to revoke a mandatory cancellation, a decision-maker must take into account the considerations listed in PART C of the Direction, which refers to primary considerations and other considerations.  Paragraph 13(1) provides that the primary considerations are:

   ...

   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.

6. Each of those primary considerations is elaborated upon in paragraphs 13.1-13.3 of the Direction, the relevant extracts of which are outlined below:

   13.1Protection of the Australian Community

   (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.

   13.1.1The nature and seriousness of the conduct

   (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: [emphasis added]

   a)The principle that, without limited the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)The sentence imposed by the courts for a crime or crimes;

   d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   e)The cumulative effect of repeated offending;

   …

   13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

   (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 any 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: [emphasis added]

   a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

   b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   13.2Best interests of minor children in Australia affected by the decision

   (1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

   (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

   (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

   (4)In considering the best interests of the child, the following factors must be considered where relevant:

   (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);

   (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   (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;

   (d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   (e)Whether there are other persons who already fulfil a parental role in relation to the child;

   (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)

   …

   13.3Expectations of the Australian community

   (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.

7. Paragraph 14 of the Direction provides that the other considerations include (but are not limited to):

   …

   a)International non-refoulement obligations;

   b)Strength, nature and duration of ties;

   c)Impact on Australian business interests;

   d)Impact on victims;

   e)Extent of impediments if removed.

8. No specific evidence was put before the Tribunal of any impact on Australian business interests or the victims of Mr Sipanisi’s offending if the visa cancellation is not revoked. As such, neither of those considerations are relevant to this matter. The remaining considerations, being international non-refoulement, strength, nature and duration of ties and extent of impediments if removed, are relevant and are elaborated upon in paragraphs 14.1, 14.2 and 14,5 respectively. The relevant portions of those paragraphs are as follows:

   14.1International non-refoulement obligations

   (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

   (2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

   (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

   (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

   …

   14.2Strength, nature and duration of ties

   (1)The strength, nature an 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 (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

   14.5Extent of impediments if removed

   (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)The non-citizen’s age and health;

   (b)Whether there are substantial language or cultural barriers; and

   (c)Any social, medical and/or economic support available to them in that country.

9. Finally, it is important to note that paragraph 8(4) of the Direction provides that primary considerations should generally be given more weight than the other considerations. Furthermore, paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

   SUBMISSIONS

10. The parties have filed written submissions and made oral submissions at the hearing. These will be considered under the Tribunal’s Deliberations which follow.

    TRIBUNAL’S DELIBERATIONS AND DECISION

11. The parties agree that Mr Sipanisi fails the character test under s 501(6)(a) of the Act and therefore he needs to meet the requirements of s 501CA (4)(b)(ii) relating to the existence of another reason as to why the delegate’s decision should be revoked. The Tribunal is required to reach its decision in accordance with the principles outlined in Direction No. 65. These provide guidance and direct delegates and this Tribunal in relation to primary and other considerations to be satisfied or otherwise in reaching the correct and preferable decision on the question of revocation of the visa cancellation.

    Protection of the Australian Community

12. Mr Sipanisi’s repeated criminal offending resulting in over 40 charges being laid and two periods of detention in Youth Justice Centres reflect the seriousness of his crimes, most of which were attended by violence. On at least two occasions, Mr Sipanisi’s crimes also involved the use of weapons (a gun and an axe). The Minister had determined that this history weighed heavily against revocation in order to protect the Australian community. Ms Jenkins accepted this criminal history is serious, as does the Tribunal.

13. The risk to the Australian community of Mr Sipanisi re-offending had been determined by the Minister to be unacceptable given his repeated offending in the Australian community and offending while in custody. Ms Jenkins submitted that Mr Sipanisi’s demonstrated rehabilitation in terms of his educational advances, support from teachers and social workers, his remorse, and his family support indicated that the risk of re-offending was low.

14. The Tribunal acknowledges Mr Sipanisi’s educational advances and training leading to his acquisition of certification in areas related to building and construction, this being the area in which he desires to be employed. However, the history of his offending is such that when confronted by a stressful situation or challenge he succumbs to pressure and again engages in serious criminal activity. The Tribunal places particular reliance on the assessment and report of Ms Crehan and Ms West, senior staff members of the Youth Justice division of the Department of Health and Human Services who concluded in late 2016 that Mr Sipanisi had failed to demonstrate an ability to sustain any improvement in terms of repeating high risk behaviour. The Tribunal determines that the risk of recidivism is very high and that the nature of the harm if Mr Sipanisi were to repeat his previous criminal conduct would likely be of a serious violent nature, and possibly also of a serious proprietary or financial nature. With this in mind, the Tribunal finds that Mr Sipanisi represents an unacceptable risk of harm to the Australian community. Noting both the nature and seriousness of Mr Sipanisi’s offending and the risk of harm should he reoffend, the Tribunal finds that the protection of the Australian community weighs strongly against revoking the mandatory cancellation of Mr Sipanisi’s visa.

    Best Interests of Minor Children in Australia

15. It is agreed by the parties that as Mr Sipanisi does not have any children and does not fulfil a parental role and has had limited contact with his niece and nephew, this consideration is of no weight. The Tribunal agrees and so finds.

    Expectations of the Australian Community

1. Ms Jenkins submitted that, as Mr Sipanisi had demonstrated remorse, matured, undertaken rehabilitation and had been offered employment should his visa cancellation be revoked, an informed Australian citizen would afford him a second chance. The Respondent contended that the Australian community would expect Mr Sipanisi’s visa to be cancelled given he commenced his serious and violent criminal activities 5 months after his arrival in Australia, repeatedly re-offended and last offended in January 2017 while in custody.

2. In Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, Block DP stated that the expectations of the Australian community should be considered through the lens of a middle-of-the-road reasonable member of the Australian community who does not hold extreme views one way or another on immigration matters and who has full knowledge of the evidence before the Tribunal (at [7]). Although Re Jupp considered an earlier Ministerial Direction, the proposition put forward by Block DP nonetheless remains relevant when assessing the expectations of the Australian community under Ministerial Direction 65. Ultimately, the expectations of the Australian community will be a matter of judgment… made on the basis of facts established by the evidence (Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [72]; per Forgie DP). The principles contained in paragraph 6.3 of the Direction are also relevant when considering the expectations of the Australian community, as they reflect community values and standards (paragraph 6.2(1)).

3. The Tribunal determines that an informed member of the Australian community would expect that the Tribunal should not revoke the mandatory cancellation of Mr Sipanisi’s visa and should not contemplate giving him a so-called second chance. Mr Sipanisi’s criminal history is extensive and serious, and there is an unacceptable risk he will reoffend yet again. As such, this consideration weighs strongly against revocation.

   Non-Refoulement Obligations

4. Mr Sipanisi is not a refugee. He has made claims that if returned to New Zealand he would be pressured and even forced to join an ethnic gang in the Auckland district. He is now 20 years old, an adult, and not confined to living with his parents. No evidence has been provided to support his contention and neither he nor his sister Viviena have recent knowledge of gang activity in New Zealand, they having been absent from New Zealand for four and nine years respectively.

5. Ms Jenkins conceded that there was insufficient evidence to support a claim for a protection visa, but urged the Tribunal to give consideration as to whether the harm he feared had a “private quality” that was a reason that the cancellation should be revoked as addressed by the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 (at [72]). Ms Richards distinguished BCR16 as the decision in that matter had been made by the Assistant Minister, not a delegate or the Tribunal, and it was unclear if BCR16 applied in the current matter. With these submissions in mind, the Tribunal considers it unnecessary to consider the implications of BCR16 in this matter. There is no specific evidence before the Tribunal indicating that Mr Sipanisi would be at risk of a specific type of harm constituting a non-refoulement obligation. The only evidence the Tribunal has in this regard is general statements from Mr Sipanisi and Ms Viviena Niupalau that Mr Sipinasi would be pressured to become involved in ethnic gangs in New Zealand. There was no further substantiation on the risk that Mr Sipinasi would be pressured into joining an ethnic gang or the harm that may be caused by this pressure. Accordingly, this consideration is given no weight.

   Strength, Nature and Duration of Ties

6. Mr Sipanisi has been in Australia for four and a half years, some 28 months of which he has spent in custody. There is no evidence that he has made any contribution to the community and he commenced offending only five months after his arrival in Australia. Nonetheless, he does have ties to his aunt and uncle, as well as his sister Viviena and her young children. Taking all these matters into account, the Tribunal finds that this consideration weighs in favour of the revocation of the mandatory cancellation of Mr Sipanisi’s visa.

   Extent of Impediments if Removed

7. Mr Sipanisi is aged 20 and in good health. He is a New Zealand citizen and entitled to all the benefits available to citizens of New Zealand. His parents and two sisters (and three children of one of the sisters) live on the North Island. While his parents had, in July 2016, stated their intention to move to Australia to be with their son, they have since assumed the care of at least two of their grandchildren. As Mrs Fonokalafi’s health was said to be poor, it had been questionable as to whether she would be able to support her son in any manner should he return to Auckland. They provided medical reports confirming she has diabetes and diabetic nephropathy but state this has been stable for four years and her diabetes control has improved and should thus not impact on her involvement in his support. Finally, Mr Sipanisi has acquired skills in the building trade that should serve him well should he return to New Zealand. Taking into account Mr Sipanisi’s age and health and the support available to him in New Zealand, the Tribunal finds that the extent of the impediments Mr Sipanisi would face in establishing himself in New Zealand are minimal and accordingly, this consideration weighs only slightly in favour of revoking the mandatory cancellation of Mr Sipanisi’s visa.

   CONCLUSION

8. The Tribunal decides that the correct and preferable decision in this matter is to not revoke the mandatory cancellation of Mr Sipanisi’s visa. The seriousness of Mr Sipanisi’s criminal offending, in particular the frequency of his re-offending, even while in custody, and the very high risk of further offending are such that the protection of the Australian community weighs heavily in favour of not revoking the mandatory cancellation. Furthermore, the Australian community’s expectations in these circumstances are that Mr Sipanisi should not continue to hold a visa in light of his extensive criminal history and the unacceptable risk that he will continue to breach the trust of the Australian community. Accordingly, this consideration also weighs heavily in favour of not revoking the mandatory cancellation. The Tribunal notes that the strength, nature and duration of Mr Sipanisi’s ties to Australia weighs in favour of the revocation of the mandatory cancellation and the extent of impediments he will face if removed from Australia to New Zealand also weighs slightly in favour of revocation. However, these other considerations are far outweighed by the primary considerations in this matter.

9. The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

................................[sgd]........................................

Associate

Dated: 8 September 2017

Date of hearing:	31 August 2017
Counsel for the Applicant:	Ms M. Jenkins
Solicitors for the Applicant:	AUM Lawyers
Advocate for the Respondent:	Ms P. Richards
Solicitors for the Respondent:	Clayton Utz

APPENDIX OF EXHIBITS

Applicant

A1       Statement of the Applicant dated 22/8/17

A2Letter from Elise Truong, Parkville College, undated and Statement of Attainment from Melbourne Polytechnic, issued 11/6/16

A3       Statement of Viviena Niupalau dated 22/8/17

A4       Statement of Lovely Singh dated 21/8/17

A5       Statement of Karnail Singh dated 21/8/17

Respondent

R1      Paginated G-Documents

R2      Volumes of Summons Material (Vols 1 & 2)