Su'A and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 48

Su'A and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 48 (22 January 2024)
Division:GENERAL DIVISION
File Number: 2022/10654
Re:Salec David Su'A
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:22 January 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 December 2022 to not revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) Subclass 444 Special Category visa.
...............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand citizen – failure to pass good character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – where the Applicant voluntarily departed Australia – where family in Australia expressed intention to move to New Zealand if Tribunal’s decision was to affirm – where Applicant has established himself in New Zealand since departing Australia – Tribunal finding considerations against revocation outweigh those in favour – Tribunal finding there is no other reason to revoke the mandatory cancellation decision – delegate’s decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett and Minister for Immigration and Border Protection, [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)
Holloway V Minister for Immigration, Citizenship And Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
22 January 2024
INTRODUCTION

Mr Su’A seeks review of the Respondent’s delegate’s 2 December 2022 decision not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) Subclass 444 Special Category Visa (the Visa).[1]
[1] G documents (bookmarked G1-G27), G2, page 11. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a Visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 7 and 8 November 2023. Mr Su’A was represented by Ms Samuta, a legal practitioner with Samuta McComber Lawyers. The Respondent was represented by Ms Gutmann, a legal practitioner with Minter Ellison Lawyers.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Su’A is 30 years old and is a New Zealand citizen who was born in Samoa.
On 11 June 2020, Mr Su’A’s Visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act)[2] due to him failing the character test[3] because he had been sentenced to term of imprisonment of 12 months or more.[4]
[2] Exhibit G1:G21, pages 138 – 144.
[3] Pursuant to s 501(6)(a) of the Act.
[4] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
On 7 July 2020, Mr Su’A made representations to the Respondent seeking to have the cancellation decision revoked under section 501CA of the Act.[5]
[5] Exhibit G1: G12, page 99.
On 22 November 2021, Mr Su’A made further representations to the Respondent seeking to have the cancellation decision revoked under section 501 CA of the Act.[6]
[6] Exhibit G1: G14, page 115.
On 17 May 2022, Mr Su’A departed Australia.[7]
[7] Exhibit R2: S5, page 34.
On 2 December 2022, a delegate of the Respondent found that the power under subsection 501CA(4) of the Act to revoke the mandatory cancellation of Mr Su’A’s Visa was not enlivened.[8] Consequently Mr Su’A’s Visa remained cancelled.
[8] Exhibit G1: G4, page 16.
OFFENDING HISTORY
Mr Su’A’s offending primarily relates to the following incidents between September 2020 and August 2022, summarised chronologically below:
(a)on 24 August 2020 Mr Su’A was convicted in the New South Wales District Court at Parramatta of Affray and sentenced to 14 months imprisonment;[9]
(b)on 6 December 2019 Mr Su’A was convicted of his index offending Reckless grievous bodily harm - in company, for which he was sentenced to four years and six months imprisonment, with a further offence of Assault occasioning abh in company of other(s) taken into account in sentencing;[10]
(c)on 20 October 2017 Mr Su’A was convicted on 3 charges of Steal from the person, for which he was sentenced to nine months’ imprisonment;
(d)on 12 August 2016 Mr Su’A was convicted of Have custody of an offensive implement in a public place and Riot-T1 and sentenced to nine months’ imprisonment;[11]
(e)on 12 August 2016 Mr Su’A was convicted of Larceny-T2 and fined.
[9] Exhibit G1: G6.
[10] Exhibit G1: G6, G7, G8 and G9.
[11] Exhibit G1: G6.
Mr Su’A’s index offence for which he was convicted of Reckless grievous bodily harm - in company and Assault occasioning abh in company of other(s) derive from a fight, instigated in part by Mr Su’A[12], at The Carousel Inn in Rooty Hill between himself and his four associates on the one hand, and two other men. One of the latter was a Mr Taylor. The fight was captured on video.[13]
[12] Exhibit G1: G10, pages 70-71 and Transcript, page 20, lines 1-3.
[13] Exhibit G1: G10, page 49.
Immediately before the fight, Mr Su’A was acting aggressively towards the two men. He shouted at them and challenged them to a fight.[14]
[14] Exhibit G1: G10, page 52.
While Mr Su’A was held back by security, his associates caused significant harm, including the deployment of a chair leg and a hammer, to both the two other men.[15]
[15] Exhibit G1: G10, pages 52-53.
Mr Taylor sustained fractures to his skull, nose and eye socket, as well as several lacerations, resulting in him lying unconscious in a pool of his own blood.[16]
[16] Exhibit G1: G10, pages 54-55 and 71.
At the end of the assault, Mr Su'A was released by security and as Mr Taylor was lying motionless, Mr Su'A walked over to him, picked up his head by his hair and then shook it, before walking out into the car park.[17]
[17] Exhibit G1: G10, pages 52-53.
Judge Bennett SC described Mr Su’A’s action as 'deplorable' in his 6 December 2019 sentencing remarks.[18]
[18] Exhibit G1: G10, pages 53 and 71.
Judge Bennett SC made the following relevant observation about Mr Su’A:
‘I agree with the submissions made by the Crown that the objective gravity of the offending must be assessed with regard to all of the circumstances such that even though he played no part in the actual application of force to the victim of the principle [sic] offence, and the victim of the additional offence. That was as the Crown put it not through any lack of trying. The CCTV footage demonstrates clearly that he made numerous attempts to get involved in the assault but was restrained from doing so by the security guards.
His moral culpability I agree would not be significantly reduced given his repeated attempts to get involved in this attack. He was the instigator and the initial aggressor in conduct which could not be described as anything less than vigorous. I have had regard to the degree of violence that was involved in the attack upon the victim in each case; it was extreme.’[19]
and
‘The moral culpability is also informed, I agree, with what the offender did after Mr Taylor was rendered unconscious on the floor laying in his blood when the offender walked up, took his head by the hair and lifted it and shook it. Even though that was for a short time there is no explanation before me as to why he would have done such a thing. I would reject any suggestion, not that it has been made, that he was checking on the welfare of the victim after having suffered the attack that was rained upon him, and the injuries that were occasioned. To have taken the man by the hair and shaken his head is deplorable.’[20]
[19] Exhibit G1: G10, pages 70-71.
[20] Exhibit G1: G10, page 71.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with ss 501(6) and 501(7), oblige the Minister to cancel a person’s Visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ which is defined by section 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose Visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
The character test.
Mr Su’A’s Visa was cancelled on the basis that he did not pass the character test. He had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving that sentence on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory..[21] Consequently, Section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
[21]Sections 501(6)(a) and 501(7)(c) of the Act.
The remaining issue for the Tribunal to consider under Section 501CA(4)(b)(ii)(‘another reason’) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[22] In assessing whether there is another reason, the Tribunal “stands in the shoes of the original decision-maker” while having regard to the situation as at the time of its consideration.[23]
[22] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[23] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why Mr Su’A’s Visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[24] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the Visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the Visa should be revoked then the Minister must revoke the cancellation.…’
[24] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal considers the factors weighing for and against in its assessment of whether to revoke a cancellation of a person’s visa, s 499(2A) of the Act requires the decision-maker (in this case the Tribunal) to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[25]
[25] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[26]
[26] Section 499(2A) of the Act; a [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[27]
[27] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[28]
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[28] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.

Paragraph 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[29] The weighing process is determined by decision-makers exercising the relevant power under the Act.[30]
[29] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[30] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE EVIDENCE
The following is a summary of the evidence tendered or adduced before the Tribunal including oral testimony.
Documentary evidence
The hearing received written evidence, a copy of which is attached to this Decision and marked ‘Annexure A’.
Oral Testimony
The witnesses who gave evidence during the hearing were:
(a)Mr Su’A;
(b)Mr Ian Escandor;
(c)Ms Julie Dubuc;
(d)Ms Taiara Matavesi;
(e)Mr Salelavulu Filipe Su’A; and
(f)Ms Sinuia Su’A
Mr Sua’s testimony addressed the following matters:
Relationship with Ms Taiara Matavesi
‘Ms Samuta: And when did you start your relationship with Ms Taiara? Sorry, Ms Matavesi?
Mr Su’A: Back in 2011.
Ms Samuta: And have you been with her since?
Mr Su’A: Yes.
Ms Samuta: And what are your plans for the future with Ms Matavesi?
Mr Su’A: We’re planning to settle down. Get married, have a family. That’s when I thought I was – yes. When I thought I was getting out of prison to Australia. We were making plans to settle down and things like that. Yes. But for now, we’ve just had to put that on hold until we find out the results.
Ms Samuta: And has she visited you since you’ve been in New Zealand?
Mr Su’A: Yes. She’s been here about four times, I think. Yes. If I’m correct, yes.
Ms Samuta: If she’s still living in Australia, how do you maintain contact?
Mr Su’A: Phone calls, pretty much. FaceTime.
Ms Samuta: You think she’s been impacted by your situation?
Mr Su’A: Yes, for sure.
Ms Samuta: How do you think that she’s been impacted?
Mr Su’A: I think one, financially. Like, having to take off work and then I’m here, then go back. I think mentally as well, because she’s got family over there and some of them are unwell, so she doesn’t want to leave. Yes. And, like, yes, there’s a lot of factors that come into play when – yes. I think – yes, it’s – yes.’[31]
[31] Transcript, page 11, lines 23 – 46.
Mr Su’A, OneFour and the Australian Music Industry
‘Ms Samuta: And in the statement, you say that you made contributions to the Australian music industry. Can you explain how that’s been?
Mr Su’A: Well, me and the group that I work with have been Aria-nominated and things like that. We’ve toured Australia with big festivals, so we’ve contributed a little bit. Through that, yes.
Ms Samuta: And just to be clear, what’s the name of that group that you mentioned?
Mr Su’A: It’s called OneFour.
Ms Samuta: Okay. And in your statement, you talk about a merchandising business. Can you say more about that?
Mr Su’A: Yes. It’s called Emeris Merchandise and it’s – yes. It’s just if fans want to purchase, like, clothes and, like, yes. Just things like that.’[32]
[32] Transcript, page 9, line 36 – page 10, line 2.
Employment
‘Ms Samuta: And just to be clear, what work did you do?
Mr Su’A: Audio engineering, so music recording. Yes.
Ms Samuta: Who will support you with those plans?
Mr Su’A: Who – can you repeat the question?
Ms Samuta: (Indistinct) support you with those plans for the future?
Mr Su’A: I’ve got support from – through a recording artist that I work with, or my management or my family. And my partner as well; she wants to move out there with me as well. Yes.’[33]
[33] Transcript, page 12, lines 36 – 45.
Family and Ms Matavesi
‘Ms Gutmann: So you’ve given evidence briefly in chief today that you are supported by your parents but you’ve also experienced some conflict with them. You’ve given evidence that you’ve felt a lot of pressure from your parents’ expectations, is that right?
Mr Su’A: Yes.
Ms Gutmann: And because they impose their Mormon faith on you. Is that also right?
Mr Su’A: Yes.
Ms Gutmann: Do you still feel those pressures from them?
Mr Su’A: No, not as much as when I was adolescent.
Ms Gutmann: You’ve given evidence in your documentary evidence that your relationship with them is much more positive. Would you agree?
Mr Su’A: Yes.
Ms Gutmann: In relation to your relationship with Taiara, earlier evidence – that is, before the tribunal demonstrates or indicates, rather, that your relationship was on-again, off-again. But you – you’d given evidence this morning that you’re in a more stable relationship with her now. Is that correct?
Mr Su’A: Yes.
Ms Gutmann: Okay. And you remain in contact fairly regularly. Is that right?
Mr Su’A: Yes.
Ms Gutmann: So I understand that she’s visited you numerous times while you’ve been in New Zealand. Is it – do you understand that she – if you were to remain in New Zealand, would she move with you?
Mr Su’A: Yes, but it would probably take a long time because her – she lives with her grandma as well. She’s a bit sick, so I think she wants to stay there just in case something happens. Just for – until the time being.
Ms Gutmann: If you were to remain in New Zealand, do you think that you and Taiara would remain together? Would you continue to claim a future together?
Mr Su’A: I would hope so’ [34]
[34] Transcript, page 13, line 46 – page 14, line 29.
Behavioural Motivation
‘Ms Gutmann: You had a consultation with a psychologist Joseph Nashed in 2016, and you explained that part of your behavioural issues were because you felt like you had a reputation to live up to. Do you remember that?
Mr Su’A: Yes.
Ms Gutmann: What did you mean by that, when you said that you had a reputation to live up to?
Mr Su’A: I think it’s just growing up, going to school and seeing how everyone else was behaving. I felt like I needed to behave the same in – during that time period.
Ms Gutmann: How were they behaving?
Mr Su’A: Just recklessly, I guess. Yes.’[35]
[35] Transcript, page 14, line 39 – page 15, line 1.
Offending
‘Ms Gutmann: And then the second offence on 12 August 2016, you were convicted of one count of riot and one count of have custody of an offensive implement in a public place. And you were sentenced to 9 months imprisonment with a non-parole period of three months and fined $300. Is that right?
Mr Su’A: Yes.
Ms Gutmann: So the fact sheet for that offending is in the supplementary bundle of the material on page 46. And it is discussed in the sentencing remarks at – in the G documents at page 58. Mr Su’A, I understand the context of this offending was that there was a conflict between rival Western Sydney gangs. Is that right?
Mr Su’A: Yes.
Ms Gutmann: And this was a planned confrontation between the groups at Mount Druitt railway station. Is that right?
Mr Su’A: I think so. Yes.
Ms Gutmann: And on that occasion, you were armed with a golf club?
Mr Su’A: Yes.
Ms Gutmann: And the facts indicate that you struck towards a male on the ground who was crawling away. Is that right?
Mr Su’A: Yes.
Ms Gutmann: Do you remember if the golf club connected with his body?
Mr Su’A: I don’t recall.
Ms Gutmann: And you were refused jail for that offence, weren’t you?
Mr Su’A: Yes.
Ms Gutmann: In the pre-sentence report, which is in the supplementary bundle of material at page 68, it says in that report that you minimised involvement in the offence by claiming that you had not gone out of your way to participate because you were already at that location. You also said that you had no prior knowledge of what was happening. Do you remember saying that?
Mr Su’A: I don’t remember.
Ms Gutmann: Is that still your attitude towards the offending?
Mr Su’A: Can you repeat what was said?
Ms Gutmann: You told the report writer that you had not gone out of your way to participate because you were already at the location and you also said that you had no prior knowledge of what was happening?
Mr Su’A: Yes, before it happened I didn’t – I didn’t have any knowledge of it – of it going to happen, yes.
Ms Gutmann: Do you agree with the report writer that you minimised your involvement in those offences by making those claims?
Mr Su’A: I guess so, yes.
Ms Gutmann: You say I guess so, you don’t have to agree with me?
Mr Su’A: Okay’[36]
[36] Transcript, page 16, lines 4 – 46.
and
‘Ms Gutmann: The fourth offence is that on 6 December 2019 you were convicted of one count of reckless grievous bodily harm in company and one count of assault occasioning actual bodily harm in the company of others. You were sentenced to four years and six months’ imprisonment with a non-parole period of two years and three months. Sorry, the facts of this offending is set out in the sentencing remarks at G44 from page 48 onward and the agreed facts are at supplementary bundle 92. You committed this offence in the company of five others; is that right?
Mr Su’A: Yes.
Ms Gutmann: Were any of your co-offenders fellow OneFour members?
Mr Su’A: Yes, one.
Ms Gutmann: And who was that?
Mr Su’A: Pio Misa.
Ms Gutmann: It was a pretty severe assault, would you agree with that?
Mr Su’A: Yes.
Ms Gutmann: And you were, on your evidence, intoxicated at the time; is that right?
Mr Su’A: Yes.
Ms Gutmann: Now we have CCTV footage of that offence. Sorry, bear with me, I understand that it was filed but I’m just looking for a reference to it. Ms Samuta, do you know if we did file CCTV footage of that offence?[37]
[37] Transcript, page 17, lines 26 – 45.
[The video was shown to the Tribunal]
Ms Gutmann: You can see your OneFour colleague, Pio Misa, use a chair leg to beat the victim. Your co-offender Dahcell Ramos-Malo in the course of this offending also used a hammer on the victim and at the end of the video you are seen shaking the victim’s head. That’s right, isn’t it?
Mr Su’A: Yes.
Ms Gutmann: Following those offences, you left the scene of the crime in a car, is that right?
Mr Su’A: Yes.
Ms Gutmann: Now the victim of this offence suffered some significant injuries. I’m just going to take you to those. In the sentencing remarks at page 54 and 55, those injuries are set out. The victim suffered a non-displaced fracture to the right side of his skull, fractures to both sides of the nasal bone, a displaced nasal septum fracture, two right sinus wall fractures, fractures to the floor and lateral wall of the right eye socket, a laceration to his cheek and lip, a 5 centimetre laceration to his right eyebrow, a 4 centimetre laceration to his right eyelid, significant swelling to his face and wound on both ears as a result of earrings being pulled from his ears. Were you aware of the extent of his injuries?
Mr Su’A: I wasn’t aware until I received the brief of – yes, how bad it really was.
Ms Gutmann: And you’d agree that his injuries are fairly significant, wouldn’t you?
Mr Su’A: Yes, I would.
Ms Gutmann: The sentencing remarks also makes reference to the victim impact statement. We have a copy of that in the supplementary bundle of the material at page 31. Sorry not 31, let me just approach that. Page 107 is the victim impact statement. In that statement the victim sets out his experience of the offending and the aftermath. He says that he was in and out of consciousness for 10 hours and he couldn’t breathe properly. He said that he didn’t leave his house for two weeks after the assault. He still cannot feel the right side of his teeth, which are completely numb, as is the right-hand side cheek and eye socket next to his nose. He says he feels anxious and watches everything that goes on around him and his fiancée, two children, two stepchildren and grandson were angry and upset as a result of the offences. It sounds to me like these offences had a significant impact on his life, would you agree with that?
Mr Su’A: Yes.
Ms Gutmann: And how do you feel about the offending now with this knowledge?
Ms Su;A‑‑‑I feel a bit disappointed in myself being involved and very remorseful towards the family and the impact that me and my co-offender’s actions caused to him.
Yes.
Ms Gutmann: You say that you were involved in this offending but the sentencing remarks indicate that you were the instigator of this offending, would you agree with that?
Mr Su’A: Yes.
Ms Gutmann: You also blamed excessive use of alcohol for your instigation of this offence. Do you still believe that this is the cause of your offending on that occasion?
Mr Su’A: I think it has a part to play in it, yes.
Ms Gutmann: You also blamed your negative peer influences, do you still agree that that was the cause of your offending on this occasion?
Mr Su’A: I take responsibility for my actions on this.’ [38]
[38] Transcript, page 19, line 4 – page 20, line 11.
Risk of Reoffending
‘Ms Gutmann: The presentence report at page 82 of the supplementary documents states that you acknowledged that you had some unresolved anger issues. Is that right?
Mr Su’A: Yes.
Ms Gutmann: Can you explain those issues to the tribunal?
Mr Su’A: I can’t even remember what I was on about to be honest. But during those times I think it might have had to do with maybe the pressure from my parents to do well in like church. I think, yes that might have played a big part in all of that.
Ms Gutmann: Do you feel like you have unaddressed anger issues at the moment?
Mr Su’A: No.
Ms Gutmann: So, how would you say that you dealt with them?
Mr Su’A: I think jail helped me. I think that last sentence I think I actually needed that time away to give me a lot of time to reflect on what was I doing wrong and how could I actually fix my mistakes.
Ms Gutmann: You also completed the EQUIPS aggression program. That’s right, isn’t it?
Mr Su’A: Yes.
Ms Gutmann: What did you learn in that program?
Mr Su’A: I think the main thing was the effects that it has on other people. Like, not just myself but those around me and how anger could affect them, the people I love or even the victims as well. Yes.
Ms Gutmann: The same sentencing report said that you were considered for a placement in the intensive drug and alcohol treatment program but that you declined to participate. Do you remember that?
Mr Su’A: Yes.
Ms Gutmann: Can you explain why you declined to participate in that program?
Mr Su’A: I think I only had like about a month or something left and I felt that the EQUIPS program helped me enough.
Ms Gutmann: Do you have any intention to engage in any further psychology or counselling to address your mental health and substance abuse issues?
Mr Su’A: Not at this moment. I feel like at this moment I feel okay. I feel, yes, good with how I am right now.
Ms Gutmann: Okay. So, the presentence report with respect to your 2016 offences marked you as a low to medium risk of reoffending. And then in the presentence report with respect to your later offences you were marked as a medium risk of reoffending. You continued to offend when you were assessed as a low medium risk. You’d agree with that, wouldn’t you?
Mr Su’A: Yes.
Ms Gutmann: Why should the tribunal be satisfied now that you’re not a medium risk of reoffending or that you won’t reoffend?
Mr Su’A: I think just seeing the growth, of how I’ve changed from back then. And just seeing the steps that were put in place to keep me away from, yes, any more time if I was to come back.
Ms Gutmann: But you’d agree with me, wouldn’t you, that you haven’t engaged in a significant amount of treatment or rehabilitation programs?
Mr Su’A: I’ve attended a program here when I first arrived. I can’t remember the name. It’s a Māori name. I can’t remember how to pronounce it. But, yes, I attended a program here as well.
Ms Gutmann: What was that program for?
Mr Su’A: It was for, I’m pretty sure violence and alcohol, something around there, yes.
Ms Gutmann: How long did that program go for?
Mr Su’A: It was three weeks but I ended up doing more. I stayed. I kept attending. I think I did maybe five.
Ms Gutmann: And how frequently did you attend?
Mr Su’A: Once a week.
Ms Gutmann: So, you attended once per week for about five weeks. Is that right?
Mr Su’A: Yes.
Ms Gutmann: And you said that it had something to do with violence and alcohol. Is that right?
Mr Su’A: Yes.
Ms Gutmann: Can you be more specific about what it is that this program taught you?
Mr Su’A: It was to do with family and how violence and substance abuse can affect them.
Ms Gutmann: What do you feel like you learned in that program?
Mr Su’A: Well, I learned that my actions caused this separation between me and my family. And I’ve learned steps to take in the future to help minimise the chances of anything happening.
Ms Gutmann: So, you returned to New Zealand in May 2022. Is that right?
Mr Su’A: Yes.
Ms Gutmann: But your revocation – your visa was [not] revoked in December 2022. Is that right?
Mr Su’A: I think so. Yes.
Ms Gutmann: Okay. So you returned to New Zealand before your visa [revocation decision]?
Mr Su’A: Can you repeat that?
Ms Gutmann: You returned to New Zealand before your visa [reovcation decision] . Is that right?
Mr Su’A: Yes. I think so, yes.’[39]
[39] Transcript, page 31, line 1 - page 32, line 38.
Rehabilitation
‘Member: You’ve mentioned a little of what you took away from them. Could you expand on that? Could you tell me what, you know, when you think about it what did you really draw a life lessons from those courses?
Mr Su’A: I think the most important one was from seeing the people around me. And a lot of them were in their late thirties or some of them were in their forties as well. And I think I learned a lot from seeing them in jail at that age. And I think what I took away from it was, ‘I don’t really want to be that person that’s 40 years old in jail for substance abuse’. And yes, I think that was the most valuable lesson that I learned was seeing everyone around me and, like, knowing that I didn’t want to be like that.
Member: Okay. Thank you. Now, can you tell me what you do each day in New Zealand? What’s a normal day for you in New Zealand?
Mr Su’A: Well, when my car was working I used to train every day, and yes, just go to studio. And, yes, just record and send back to Australia.
Member: Okay. Now, Ms Gutmann took you through the tours that OneFour have done, one in 2019, two in 2022. I’m guessing – and this is where I’d look for you – do you spend a fair bit of time working on touring plans or on selling merchandise? Or do you spend more time in the recording studio?
Mr Su’A: It’s a mixture of both. But the touring is a bit hard from over here because, yes, most of the shows are in Australia that we do. So, it’s a bit hard from over here. So, I mostly just focus on the recording side of things and merchandise.
Member: Okay. Is touring the most profitable of the three?
Mr Su’A: Yes.
Member: Now, in the G documents, and the reference is G5, page 22. This is the decision of the minister’s delegate, is the comment that you are susceptible to negative influences. So, what do you do to avoid negative influences? This includes alcohol, drugs and what’s known as antisocial contacts, social contacts, people it’s probably not a good idea to be mixing with. How do you go about avoiding all that in New Zealand?
Mr Su’A: I think it’s my age. Like I’ve said this before but I really think it’s my age. I’ve been around a lot of people here that binge drink or have substance abuse and I don’t find myself wanting to participate in any of those things. And yes, I think it’s just pretty much just growth and just – yes, that’s pretty much it.
Member: Okay. Taking that on board and also the courses you’ve done, what do you actually – this goes to one of the questions Ms Gutmann had – what do you actually do in terms of a day to day, these are the steps I take, to avoid being exposed to alcohol and drugs. You’ve given evidence that you haven’t drunk since early October. But what do you do on a daily basis? What’s your daily practice to avoid alcohol and drugs?
Mr Su’A: It’s not really a part of my daily routine. I don’t really think about it. So, it doesn’t really cross my mind on a daily basis or – yes, I’m not too sure how to answer this one.
Member: No. No. That’s as good an answer as I can expect. Now, the final one I had, how would you describe your current state of physical and mental health in New Zealand?
Mr Su’A: It’s been good. It’s been all right. Yes. When I just – yes, when I was training a lot it was very good just – yes, it’s just when it came to our family situation then – but I think even with that as well, yes, it’s not like the end of the world when it comes to those family situations even though I can’t be there with them. But yes, I guess it’s not too bad.’ [40]
[40] Transcript, page 35, line 4 – page 36, line 10.
and
‘Ms Samuta (in re-examination): And just turning to the questions that Member Cosgrave asked you. He asked you about some comments that the minister made in the decision not to revoke your visa, so not to give your visa back, Member referred to some remarks in the decision around you being susceptible to antisocial influences. You told the Member that you have avoided it since being in New Zealand. You said that with your age and being around – you have been around people that binge and abuse substances. But you don’t find yourself wanting to participate in those things. That it’s just been growth. I just wanted to ask, what has the role of music played in that growth?
Mr Su’A: I think it’s been keeping me busy here. Yes. Especially because I have to try and be consistent on my own since no one else is here with me to help me. So, yes, I think music – the music thing has helped me a lot to try and push myself. Yes.
Ms Samuta: Thank you. And the Member also talked to you about the day to day steps that you take to avoid alcohol and drugs. And you simply said that it’s not part of your daily routine. You don’t think about it. It doesn’t cross your mind on a daily basis. Do you have people there or around you that drink or take drugs?
Mr Su’A: No. Not in this household, no. They drink but not binge drinking.
Ms Samuta: Okay. But you’ve had alcohol available?
Mr Su’A: Yes.
Ms Samuta: And then what about outside of the household, so just socially? Have you been around people that drink or take drugs?
Mr Su’A: Yes. For sure.’

Mr Escandor’s testimony addressed the following:
Mr Su’A and Street University
‘Ms Samuta: Okay. So my question, Mr Escandor, was what your involvement with Mr Su’A was during his time at the Street University?
Mr Escandor: So as young people at Street University, we were in and out of this youth centre for several years. And throughout that time we would make music together. When we became seniors, or kind of like youth leaders in the space, we would co-facilitate music programs. Salec [the Applicant] had a great way with engaging with the young people of his peers. A lot of the young people that engage our service are of Pacific Islander background. So he was great at just gathering a lot of the young people into the space. And then, you know, I’d often seen him – I often looked at him to get the numbers of young people in our program, and then we would co-facilitate music programs which – I mean, you know, like teaching young people how to wrap and make beats is one thing, but we also – again like I mentioned before – it was an opportunity.’[41]
[41] Transcript, page 46, lines 39 – 47.
Reaction to Mr Su’A’s Offending
‘Ms Gutmann: In your statement you refer to the footage that was circulated on the internet. What footage are you referring to?
Mr Escandor: I am referring to the footage of Salec [the Applicant] at the pub with his mates and him hitting someone on the floor. I think that’s the one. I hope I’m getting that right.
Ms Gutmann: In you statement you also say that you did not recognise him. What did you mean by that exactly?
Mr Escandor: Salec [the Applicant] is such a reserved and quiet person. Almost to his detriment, in terms of it’s tough to get stuff out of him. But to see him act out like that, or even to like – I wouldn’t never have known it to be inside of him or him being capable of that. And that’s what shocked me the most.
Ms Gutmann: But you accept that he did commit this offence?
Mr Escandor: Yes. Surely that’s (indistinct), yes.
Ms Gutmann: I understand that that’s the extent of your knowledge of Mr Su’A’s criminal history, is that right?
Mr Escandor: Yes.
Ms Gutmann: I’m going to briefly take you through his criminal history so that we are on the same page. On 12 August in 2016 Mr Su’A was convicted of one count of riot and one count of, ‘Have custody of an offensive implement in a public place,’ for which he was sentenced to nine months imprisonment and fined $300. The context of this offending was that there was a conflict between gangs in Sydney. And there was a planned confrontation at Mount Druitt railway station. Mr Su’A was involved in that altercation and he was armed with a golf club, and he struck towards a male on the ground that was crawling away. It is unclear on the evidence whether or not the golf club connected with that person’s body.
On 20 October 2017 he was convicted of three counts of steal from the person, for which he was sentenced to nine months imprisonment. On that occasion the victims of the offences were three teenage boys and Mr Su’A stole items from their bodies. At the time he was on parole for the previous offence and the offences amounted to a breach of that parole. On 6 December 2019 he was convicted of the offence which I understand you were referring to earlier. He was convicted of one count of reckless grievous bodily harm in company and one count of assault occasioning actual bodily harm in the company of others for which he was sentenced to four years and six months of imprisonment.
He was committed of those offences in the company of five others. And it was a significant assault. The evidence indicates that Mr Su’A was held back by the security guards in that offending and did not strike the victim. However footage of the offending shows Mr Su’A walk up to the victim and as he was lying on the ground in his own blood, pick his head up with his hands by his hair and shake his head around. The judge in that matter found that Mr Su’A instigated the offence and continually tried to participate in that offence but was held back by security.
On 24 August 2020 Mr Su’A was convicted of one count of affray for which he was sentenced to 14 months imprisonment. There was a violent altercation between what the sentencing judge described as, ‘two gangs’. Mr Su’A was involved in that altercation but he was not armed and he was involved for a short period of time. The evidence indicates that he was intoxicated. This is a brief summary of a few of Mr Su’A’s offences. You would agree with me, I’m sure, that this kind of conduct is not a good model of behaviour for young people, is it?
Mr Escandor: Yes. I agree.
You said in your statement that you believe Mr Su’A will find his feet and return to the community would be a positive one. Do you maintain that opinion in light of the information you’ve learned today?
Mr Escandor: Yes. The information – yes, from hearing all that very disappointed and still shocked and surprised. I think the first thing I would hope for Salec [the Applicant] is to get some support, especially with you know, the alcohol use seems to be affecting a lot of his decisions that he’s making. Again, I’m not making no excuses for him. But I do see it in him the potential and capacity to be a positive force for the community, as I’ve seen before. It obviously is hard for me to here all that and then still stick by that, you know, that train of thought, but I truly believe – even in the discussions that I’ve had recently with Salec [the Applicant] , I know that he can be a positive for the community with the right supports.
Ms Gutmann: What supports do you think he needs?
Mr Escandor: Look I’m a counsellor, so I usually do think counselling definitely. And really meaningful counselling. I would urge Salec [the Applicant] as a friend to really seriously consider counselling. And at the same time surrounding himself with strong, positive community workers. There are a lot of great Pacific Islander youth workers that I would love for Salec [the Applicant] to get in touch with. And through them he can do the good work that I’ve known him to do.
Ms Gutmann: Do you think he’s capable of being a positive influence on society if he doesn’t engage in meaningful counselling?
Mr Escandor: I think given his track record he definitely needs support. To my – I guess my own professional opinion that he needs all the support he can get, and that’s through one on one therapy work and community work. Surrounding himself with positive community workers. It does sound like a lot of the crimes that he’s committed in the past, he was surrounded by negative influence or anti-social whatever. So yes, surrounding himself with strong, positive community. Which is there, which is, yes, definitely there.’[42]
and
‘Ms Samuta: He has indicated that he will intend to return to Brisbane if he came back to Australia. So in saying that, does your referral (audio malfunction) still be able to (indistinct)?
Mr Escandor: One hundred per cent. We’ve just opened – Street University has just opened three centres in Brisbane, and one in Townsville. So I’m not exactly sure where he’s saying. But I do think engaging with Street Uni – Street University – is really up his alley. It provides the passion of art and music that he’s so great at, alongside the community work. So like there’s definitely scope for him to work alongside Street Uni.’[43]
[42] Transcript, page 49, line 40 – page 51, line 33.
[43] Transcript, page 52, lines 6 – 13.
Ms Dubuc’s evidence relevantly addressed the following topics:
Mr Su’A and Street University
‘Ms Samuta: Do you remember when that – or an approximate year?
Ms Dubuc: It was approximately in about 2010 when I first met him.
Ms Samuta: Thank you. And do you remember what Salec [the Applicant] was doing at the time, for example, (indistinct)?
Ms Dubuc: Yes so when I first went up to Mount Druitt the aim of our service was to create programs that was going to really reach young people who were disengaged, disadvantaged and basically a lot of the youth that a lot of other services just weren’t engaging in at all. It was also to provide – the way that we did that was through developing creative arts programs in which Salec [the Applicant] came and was really interested in those creative arts programs. And that’s how we first came across Salec [the Applicant].
Ms Samuta: And we understand that he originally was attending in high school, and eventually volunteered and then at some point he became employed in some capacity by Street University?
Ms Dubuc: Yes. Yes I can expand a little bit more on that. So it was really important to be able to have young people or youth that were in more leadership – to have some leadership in the community to be a part of our programs and, you know, who could help in providing these programs to other young people. And especially with this particular client group it was important to have young people who are going to be part of providing these programs that other young people could relate to and who they knew. And so we were really looking for youth who had the skills, who had potential – who had potential not only creatively but also had potential to be – to take on some leadership role at that time. Because Salec [the Applicant] – because of his interest in what we were trying to establish in our programs, because of the skill and potential that was recognised in him including, you know, really interested in being developed as a mentor, we took him on in the capacity of – more so like on a contract basis. So it wasn’t full-time employment, it wasn’t under a contract. It was to be paid as a mentor on a – just the hours that he would work.
Ms Samuta: What observations did you make about him during that time?
Ms Dubuc: Observations of Salec [the Applicant] was he was – my assistant manager, Ian Escandor, could probably expand more so on the music side of things, because he was much more skilled in music than myself, but very interested, very respectful, very family orientated, really keen for other young people in the Mount Druitt area to be given this opportunity. Because there was nothing else like this in the area. And Salec [the Applicant] helped with a number of things separate to the workshops that were being held, but he also helped with putting on events in the area. So when – my time working out there, there was always on a regular basis fighting going on in the area, fights going on between different cultural groups in the area, conflict between young people in the area and youth from different areas. Even though it was – it’s a pretty tough area for young people to be in. And – so there was nothing – there was nothing that really was provided to these young people to really engage in, and something that they – a lot of them enjoy, which is music and dance. So Salec [the Applicant] could recognise this and was really keen and helped up put on different events and the workshops that we provided. He was also instrumental in – because he was quite known in the area, he was quite instrumental in getting youth to our service. So you know there were different programs out there and services working with young people, but there weren’t really services that were really engaging with ones that were, you know, really marginalised. They weren’t going to school; in trouble with juvenile justice. And they were the one that we really – our service really were trying to target to engage with. And once that trust and engagement happened, they could eventually be referred to our counselling our team. So I also managed a group of counsellors there, and that way they could get ongoing support for counselling and case management.’[44]
and
‘Ms Samuta: Is there anything else that you’d like to say about how Salec [the Applicant] contributed to the Mount Druitt community during his time at Street University?
Ms Dubuc: Yes. Look without youth at that time like Salec [the Applicant], it probably wouldn’t have built the trust with those really marginalised young people we worked with. The really important thing for us as a service was to try and understand a lot of the complex issues that were there. You know, the area is well known to be a really disadvantaged area. A lot of discrimination, a lot of stigma, you know, kids would want help with their resumes and they wouldn’t put down the area Mount Druitt because of the stigma employers would have for anyone from that area. So it wasn’t just that though, you know, we needed local youth who really could understand what it was like to live there. And the intergenerational conflicts, you know, between the youth in Mount Druitt and other areas, and who had that knowledge and understanding and who really wanted something different, you know, for local young people. And, you know, Salec [the Applicant] really believed in what we were doing and hence, you know, like he would constantly be in our service, you know, as a result of trying to make a difference to the young people in the area.
Ms Samuta: (Audio malfunction) years Salec [the Applicant] would have (audio malfunction) Street University?
Ms Dubuc: The years? Yes so as I mentioned – so it would have been 2010, it would have been through – I think I left there in about 2018, so …
Ms Samuta: And he was there during your time? He was present in some capacity?
Ms Dubuc: In some capacity. Yes in some capacity. He also, you know, like at times things would get really volatile out, you know – when I say out in the community, like sometimes it would be just right outside our door literally. You know, things would potentially get volatile outside and, you know, and Salec [the Applicant] would often, you know, be the one who would help us to be able to manage that and, you know, keep some safety or alert us to – you know, to what was going on, so that as a service we could do something about that.’[45]
[44] Transcript, page 54, line 42 – page 56, line 5.
[45] Transcript, page 56, lines 16 – 56.
Mr Su’A’s cultural background
‘Ms Samuta: And is this what you also mean about what you say in the same paragraph about developing their own identity and the stigma?
Ms Dubuc: Yes. Especially for young people from Pacific Island background there is absolutely stigma here around who they are, identity, you know, being branded with a brush that they aren’t to be trusted, that they haven’t got much to contribute to society. I mean originally I’m from New Zealand and, you know, from my experience it’s a lot – it’s harder here for a lot of young people from Pacific Island backgrounds compared to what it is back in New Zealand. Yes. And there’s not only – you know, dealing with that stigma but also between cultural groups as well within Mount Druitt.
Ms Samuta: And with all of that being said, Ms Dubuc, do you think that has any relevance on the offences Salec’s [the Applicant]’s committed?
Ms Dubuc: Yes. Absolutely. Absolutely. I mean when – you know, when those offences happened, you know, with Salec [the Applicant] a lot – a lot of us were really shocked because it wasn’t – it was really, you know – it was really out of – it wasn’t our experience of Salec [the Applicant]. But on another level you could sort of understand when you, you know, when you understand what the area is like. And you know, when working with a lot of the Pacific Island youth out there, their cultural is very much around family and – so for example, you know, with counselling you deal with the individual. But when working with, you know, Pacific Island young people and families, you don’t see them as an individual, you see them within the context of family. And what that means is that, you know, there’s really close bonds between friends and their groups because that’s part of their culture. And so you know, the groups they are in is like their family, so to speak. And so the unfortunate thing is, is that – and I would see it time and time again where, you know, a lot of Pacific Island young people would make really compulsive bad choices in the moment when with their friends. The other really – you know, the other important factor which is very different to Anglo-Saxon clients is that in, you know, in Pacific Island culture the decisions are made all by the parents. And so young people when they grow up don’t get to learn how to make their own decisions; they’re told what to do. And you know, a lot of the work that we tried to do was to help them start try to make their own decisions. And so you know, often, it would – you know, we’d see it all the time where someone amongst their friends would make a decision, you know, they want to do something and the others would just go along. And so you know a big part of what we were trying to do also was, you know, to help them learn the skills to make their own decisions. Yes. Because often they would – and, you know, make really thoughtless decisions and end up in trouble.’
and
‘Ms Gutmann: In your statement you refer somewhat generally to Mr Su’A’s offending behaviour. Can you explain to the tribunal what you understand of his criminal history?
Ms Dubuc: Yes. I mean from what I can understand of Salec’s [the Applicant]’s history were some violence offences engaged that was within a group and with others as well, which is not surprising to hear that – like to understand that within the group context, as I was explaining before around Pacific Island youth and their culture.
Ms Gutmann: What do you mean by that?
Ms Dubuc: Like what I was saying to Jennifer before, when working with a lot of Pacific Island youth it’s – you know, what important in their culture is family, is – and that extends to friendships almost like being seen as family. And, you know, culturally where it’s always the parents who make decisions within the family. Kids aren’t really taught how to make decision making for themselves. And so often we would see time and time again where young people would end up making decisions within a group or other group members making decisions that were really, you know, impulsive, not good decisions.’
Ms Matavesi gave the following relevant evidence:
Relationship with Mr Su’A
‘Ms Samuta: When Salec [the Applicant] was in prison, how did you maintain contact with him?
Ms Matavesi: So we would usually have the (indistinct) would have the phone calls, only six-minute phone calls, or I would book a visit to see him anytime throughout the week when I was able to. That was the main contact all through (indistinct) I think the pandemic.
Ms Samuta: Since he’s been in New Zealand since May last year, how have you maintained contact?
Ms Matavesi: So we’ve been maintaining contact through normal tech, but also I have been flying a about two, three times since his – well, more than that. I’ve flown over there about four times to see him and just (audio malfunction). So, yes.
Ms Samuta: What are your plans for the future with Salec [the Applicant]?
Ms Matavesi: We’ve spoken about our future and we’re hoping and planning to, you know, settle down, get married, and start our own little family. That’s our own main goal. Since we’ve grown older, you know, a lot of our – like I mentioned in my statement – our priorities have changed. Starting our own family and – would be a great, you know, would be a great start to our future together. So that’s what we’re really hoping for.
Ms Samuta: How old are you now?
Ms Matavesi: Turning 30 at the end of the year.
Ms Samuta: How come you haven’t gone to New Zealand already to live with Salec [the Applicant]?
Ms Matavesi: It’s not quite easy because I also have my responsibilities here at home with my – with my mother and my grandmother as well, and he understands that. It’s not easy to drop everything that they sacrificed over all the years I’ve lived and grown here and, you know, let all that go and start in an unfamiliar country. I’ve spoken to my mum about it. She is aware of that being an option, possibility of moving to New Zealand, and I think that’s also kind of emotionally taking a toll on her as well. So a lot has to do with just being unfamiliar with the area and leaving my loved ones as well. And it’s always been my mother and my grandmother and my older sister. Since we were born here, it’s always just been us four, and it’s not easy to just let go of these two women to start life over in New Zealand. As much as I love Salec [the Applicant], you know, he understands, especially in our culture, to just drop everything that our – you know, that my mother and my grandmother gave up for us, it’s not an easy to think of and I – even just the thought of it, it does a lot. It’s – yes. Sorry.’[46]
Observation of Mr Su’A and his risk of reoffending
‘Ms Samuta: You spoke about changes you’ve seen in him that have taken over a decade to where you are now. What changes have you seen?
Ms Matavesi: So when we started our relationship, what I had seen in him was, you know, this bright, open-minded, very sociable person and easy to talk with. And then I think, just along the years, along the way, things have happened to him; ended up involved with the wrong crowd. And, you know, his thought process back then as a young adult wasn’t – it wasn’t really – he wasn’t really mature back then. He was – you know, during those teenage periods up to being, you know, a young adult, he (indistinct) wasn’t too great. I don’t know how to explain it, but he – I definitely seen it from beginning to now. He’ll get himself into situations where he would have not thought it – he was – it was bad. He didn’t see it as bad, but to everyone else – or, myself, I would’ve seen it and be like, ‘You shouldn’t (indistinct) before,’ you know, ‘You should’ve thought about your actions before – or things you were saying before (indistinct).’ So comparing him from as a young adult to now being in his 30s, he has better decision making from those ways and he definitely – his priorities, like I’ve mentioned multiple times, it has changed throughout the years. You know, every – then every weekend, he was always being sociable, out drinking, wasn’t really emotionally there at times. But now, he definitely has changed and is more aware of his surroundings and aware (audio malfunction) who he associates himself with, and also aware with his emotions. But I definitely had – it’s hard for me to explain – to explain, but it’s just that, in general, it has been a big change, I think a positive change, in terms of, you know, being able to come back and applying that, yes.
Ms Samuta: You’ve also said that you’ve spoken about ways to reduce his risk of offending. Can you just explain what those conversations have involved?
Ms Matavesi: Yes. We have spoken about moving (audio malfunction), either to Brisbane or either to Melbourne – those were our options – just to be able to, yes, reduce those risks, with – especially with who he associates himself with. That would’ve – that was one of our options for him – for him to be able to work or just be able to fly where – back into Sydney for him to be able to continue his work on his music. So that was one of the main – the main – the main way of being – you know, helping him out from reoffending. But I definitely know the changed man he is today and (indistinct) his maturity. He has matured a lot compared to 5-10 years ago. I would say personally the risk would be pretty low.’[47]
[46] Transcript, page 70, lines 1 – 38.
[47] Transcript, page 74, line 36 – page 75, line 13.
Risk Management Plans
‘Ms Gutmann: You say it would reduce – moving to Brisbane or Melbourne would reduce the risk of Mr Su’A meeting up with people or negative associates that he has spent time with. Have I understood that correctly?
Ms Matavesi: Yes.
Ms Gutmann: Can you tell the tribunal, to the best of your understanding, who does he associate with?‑
Ms Matavesi: Do you – worry, what do you mean by that question? Is it you want names or in general?
Ms Gutmann: Perhaps you can describe in general who these people are, what makes them negative associates?
Ms Matavesi: So in terms of the – I did mention ‘negative’, but that’s what – so it’s mostly to do with his music; the people, the boys that are involved with – they’re just his friendship – his old friendship group, I guess. I wouldn’t – I would say. I’m not really familiar with who they are in particular, most of them, because he did kind of stay away from, you know, (indistinct), but I know just any male figures he associated himself with in the area and his friendship group. But I’m just talking in general towards them.
Ms Gutmann: What is it exactly that makes you think of those people as negative influences?
Ms Matavesi: Only because most of the time that he was – he had been involved with the law, they happen to be common individuals that was also involved. So, yes, that’s my take on it.
Ms Gutmann: You’ve said that he works with some of these people. Are you aware of anyone he works with in the OneFour group or anyone in his current job that you would consider as a negative associate?
Ms Matavesi: Sorry, can you repeat that question?
Ms Gutmann: You’ve given evidence that some of these negative associates work with Mr Su’A?
Ms Matavesi: M’mm.
Ms Gutmann: Does Mr Su’A have negative associates in his current employment in relation to the group, OneFour?
Ms Matavesi: Currently, no, but I’m – I was more mentioning from back before this whole One group – sorry, OneFour group had blown up.
Ms Gutmann: You gave evidence that, even if you had to travel with him to Sydney to – and I think you said something like ‘not to supervise him but to make sure that he doesn’t associate with the wrong people’, it sounds to me like your evidence was that he does work with some of these people currently. Would you agree with that?
Ms Matavesi: So like I mentioned – like I mentioned earlier, the people that were there before OneFour had blown up, that’s who I’m generalising. When I say ‘work’, they’re not directly working. It’s just people that I know that have – I don’t know them personally, but I just know of them. So, sorry, I (indistinct) in terms that they don’t know these individuals (indistinct) to be able to speak about them. I’m just generalising the people that are associated with, you know, the music because it’s more than just the main group. There’s a whole team behind it. So that’s all I’m just saying. I don’t know exactly, but I just know in general, you know, back in the – back in the days that there have been issues which I would rather, you know, I’d rather be supporting him in a way to try and get him away from that even if (audio malfunction) travel with him. I don’t know what the case is at this time if some people are still involved in the group, but I’m just basing this off what (audio malfunction) in the past.’[48]
[48] Transcript, page 77, line 22 – page 78, line 27.
and
‘Member: I just have a few. Ms Matavesi, you gave evidence that you’ve been in a relationship with Mr Su’A for a decade, or approximately a decade. That was of the questions from Ms Samuta. Given that, what do you think his capacity or risk of – sorry, his risk of committing violence is today, compared to when you met him?
Ms Matavesi: Yes, so like I mentioned, I feel like he’s – he would be more on the low risk of committing, or, you know, none because I know – I definitely know and have seen the changes in him from when we began dating to the current point, and I definitely know his goals and his priorities have changed along the time and he has matured over the years. So I would say he’ll be, you know, very low. Very low. None, if I – if I can say that.
Member: He was convicted of, you know, a number of criminal offences, but violence was a common theme in many of them?
Ms Matavesi: Yes.
Member: And we’ve seen video today showing it, and I must say, it was fairly appalling?
Ms Matavesi: Yes.
Member: What would you do if he came back to Australia and you were in a relationship and he committed an act of violence?
Ms Matavesi: What would I do? I would – I probably – to be honest, I probably would definitely reconsider the relationship, because I – putting in a lot of energy and a lot of time and effort to, like, for him to be able to come back and just knowing 110 per cent that I believe in him, that he has changed, and if he was to commit another crime, I think that would be the ending of the relationship if I be – if, you know, just to be completely honest, because it would be very heartbreaking to have to go through all of this just for him to fall back (audio malfunction) that life of crime and I know that he knows, if that was the case, that it would most likely be the end of our relationship.’[49]
[49] Transcript, page 80, line 42 – page 81, line 23.

Mr Salelavulu Filipe Su’A gave the following relevant evidence:
Risk of antisocial contacts
‘Ms Samuta: If Salec [the Applicant] moves to Brisbane, do you think that will reduce his risk of reoffending?
Mr Salelavulu Filipe Su’A: Reduce his risk of reoffending. Yes.
Ms Samuta: Why is that?
Mr Salelavulu Filipe Su’A: I think there’s, you know, just – actually, I think, sorry, if I could – not take that back, but I think even if he moved to Melbourne, or Mount Druitt as well, I think, like, I think he would do good still. You know, he’s that – I think there’s definitely be maybe a little bit of a risk moving to – back here, because of influences and things like that, but I still – I strongly believe that, you know, Salec’s [the Applicant]’s aware of, you know, his situation. I think he’s aware of the risk that are out here. But like I said before, he’s in that era where he’s changing, he’s making amends in his life, and he’s really trying to get on that track where he can – he can be a positive outcome to everybody, so yes.
Ms Samuta: Okay. So you said if he goes back to Mount Druitt, your personal opinion is that there is little risk, but what if he doesn’t return to Mount Druitt and he just goes to Brisbane or Melbourne?
Mr Salelavulu Filipe Su’A Yes, I think…
Ms Samuta: Does he have – is it less?
Mr Salelavulu Filipe Su’A: Yes, I think, yes, less risk, where as in – yes, definitely less risk, yes.’
THE TRIBUNAL’S ASSESSMENT OF THE ORAL TESTIMONIES
The Tribunal has considered and assessed the oral testimonies.
The Tribunal assesses Mr Su’A’s testimony as carefully considered. At times Mr Su’A sought to minimise his involvement or disavow his level of accountability in the relevant offending and conduct. At other times, such as acknowledging his role in instigating the 21 July 2018 Carousel Inn incident, Mr Su’A was open when shown other evidence or third party findings and responding to these.
Ms Matavesi’s testimony was straightforward and appropriately qualified, especially in terms of the risk of Mr Su’A reoffending.
Mr Escandor and Ms Dubuc’s testimony provided a useful context for Mr Su’A’s offending and conduct, especially in terms of culture.
The Tribunal will now apply and consider the oral testimonies, together with the documentary evidence and both parties’ submissions, against the Direction’s requirements.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Tribunal consideration: The nature and seriousness of Mr Su’A’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
The Respondent contends that the Tribunal must find Mr Su’A's criminal history to be extremely serious based on the following:
(a)Mr Su’A received a sentence of imprisonment. New South Wales courts impose imprisonment as a last resort.[50] Custodial imprisonment must be viewed as a reflection of the objective seriousness of the offences involved.[51]
(b)Mr Su’A’s conviction for riot and possession of an offensive implement relates to his engaging in a large, organised fight between gangs where he stuck down a man with a golf club.[52] A NSW Corrective Services pre-sentence report states that Mr Su’A agreed with the police facts in relation to his conviction for riot and possession of an offensive weapon.[53]
(c)Mr Su’A’s convictions for recklessly causing grievous bodily harm in company and assault occasioning actual bodily harm in company relate to a fight instigated by Mr Su’A at the Carousel Inn between himself and his four associates on the one hand, and two male victims. While Mr Su’A was held back by security, his associates caused significant harm to both victims, including through the use of a chair leg and a hammer.[54] At the end of the assault, Mr Su’A walked over to one of the two victims who was lying motionless on the ground, and picked up his head by his hair and shook it before leaving, which Judge Bennett SC described as 'deplorable'.[55]
(d)Mr Su’A’s conviction for affray relates to his involvement in a fight between two gangs in Sydney, at which time he was on bail, and in breach of his curfew condition.[56]
(e)On 21 May 2015 Mr Su’A completed an incoming passenger card and declared that he had no criminal convictions despite the fact that he had been convicted of Larceny – T2 on 27 June 2012.
(f)Mr Su’A’s SFIC concedes that the nature and seriousness of his conduct should be viewed as very serious.[57]
(g)The Tribunal should also take into account the balance of Mr Su’A’s criminal conduct individually, and its cumulative effect: paragraph 8.1.1 (1)(e) of Direction 99. When regard is had to the totality of his criminal history, the Minister contends that it demonstrates both relative frequency and a trend of increasing seriousness: paragraph 8.1.1 (1)(d) of Direction 99.
[50] Subsection 5(1) of the Crimes (Sentencing Procedure) Act 1992 (NSW).
[51] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
[52] Exhibit R2: S2, page 46.
[53] Exhibit R2: S17, page 67.
[54] Exhibit G1: G10, pages 52-53.
[55] Exhibit G1: G10, pages 53 and 71.
[56] Exhibit G1: G11, page 91.
[57] Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions, [26].
Addressing the risk to the Australian community if Mr Su’A were to reoffend, the Respondent further contends:
(a)If Mr Su’A engaged in further violent offending similar to which he has previously done, this would likely be considered very serious (paragraph 8.1.2(2)(a) of Direction 99).
(b)His non-violent offending, if repeated in future, would result in serious harm.
(c)He has demonstrated limited remorse for his offending. The three programs he has completed and which he relies on to demonstrate his rehabilitation are an EQUIPS Addiction Program dated 27 April 2021, an EQUIPS Aggression Program dated 22 July 2021, and an alcohol abuse-related course since his arrival in New Zealand.[58] The EQUIPS programs appear to have been completed while Mr Su’A was imprisoned, and after his Visa was cancelled. Mr Su’A states that he is subject to parole-like conditions in New Zealand and does not confirm whether the alcohol-related course he completed since his arrival in New Zealand was voluntary.
(d)Mr Su’A submits that he departed Australia for New Zealand in 2021 and has not reoffended.[59] However, Mr Su’A did not depart Australia until 17 May 2022.[60] Mr Su’A has spent limited time at large in both the Australian community and New Zealand community since he engaged in the conduct which was the subject of his conviction for affray.
(e)Mr Su’A’s adult criminal offending history is objectively very serious, with repeated sentences to imprisonment having not deterred the applicant from subsequent violent conduct.
(f)A 9 October 2019 sentencing assessment report assessed Mr Su’A to pose a medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).[61]
(g)Having regard to his criminal history, and the absence of evidence demonstrating that his risk of reoffending has reduced, or significant evidence of rehabilitation, the Minister contends that Mr Su’A remains at a substantial risk of reoffending (paragraph 8.1.2(2)(b)).
[58] Exhibit G1: G21, pages 128-129; Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions at [27].
[59] Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions at [26].
[60] Exhibit R2: S5, page 35.
[61] Exhibit R2: S30, page 104.
Mr Su’A’s SFIC, in addition to conceding that his conduct should be treated as very serious, submits the following in terms of his risk to the Australian community if he reoffends:
(a)an assessment of Mr Su’A’s offending conduct should be undertaken in light of a particular set of historical factors which led to a decline in mental health and alcohol intoxication and which are now mitigated by:
(i)his own personal reflection, maturity and insight;
(ii)his proactive and genuine efforts for rehabilitation, including:
·personal reflection;
·completion of the EQUIPS Addiction program;
·completion of the EQUIPS Aggression certificate; and
·completion of an alcohol abuse-related rehabilitation certificate since his arrival in New Zealand;
(iii)his search for knowledge in relation to his previous substance abuse, and its impact on his mental health; and
(iv)the deterrent effect of serving a term of imprisonment; and
(v)the disastrous and sobering effect of his current circumstances which has resulted in his deportation, the possibility of which (being Visa cancellation and deportation) he was not previously aware of.
(b)he has a low risk of reoffending due to:
(i)his commitment to sobriety;
(ii)his deep remorse and acceptance of responsibility for his offending which has been consistently demonstrated through the course of events since his arrest, throughout his sentencing and representations to the sentencing judge and to the Minister;
(iii)understanding of the impact of his offending on his victims;
(iv)his insight into the causes of his offending; and
(v)the Applicant’s prevention plan, which includes ongoing rehabilitation to ensure he does not relapse and for which he has significant support.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes that Mr Su’A has committed violent crimes, based on Mr Su’A’s December 2019 convictions for assault and reckless grievous bodily harm[62], his August 2020 conviction for affray[63], Judge Bennett SC’s December 2019 sentencing remarks[64], and Judge Hanley SC’s August 2020 sentencing remarks.[65]
[62] G7.
[63] G7.
[64] G10.
[65] G11.
The Tribunal finds, having assessed the evidence in this matter against the subject matter of these paragraphs, that Mr Su’A’s crimes should be viewed as very serious and that these paragraphs carry significant weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Su’A’s Visa.
Paragraphs 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii) and 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(b)(iii) is enlivened by the evidence of Mr Su’A’s convictions for larceny and stealing.
The Tribunal considers that this paragraph carries an element of weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Su’A’s Visa.
Paragraph 8.1.1(1)(c)
In applying and considering this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Su’A for:
(a)any violent offending that he may have committed against women or children (subparagraph 8.1.1(1)(a)(ii));
(b)acts of family violence (subparagraph 8.1.1(1)(a)(iii)); and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage (subparagraph 8.1.1(1)(b)(i)).
Mr Su’A was sentenced to four years and six months imprisonment after being convicted of Reckless grievous bodily harm - in company.
Mr Su’A was also imprisoned after being convicted of Affray, which arises from his involvement in a gang fight.
Mr Su’A was convicted and sentenced to 9 months’ imprisonment for 2 charges of Steal from the person. Reviewing the NSW police charge sheets for these offences, while acknowledging that these are not determinative, suggests to the Tribunal that Mr Su’A’s actions in these 2 charges was serious.
Mr Su’A was convicted of larceny and fined $300.
Assessing these facts together, the Tribunal considers that this paragraph carries significant weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Su’A’s Visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
The Tribunal, in addressing this paragraph, considers that Mr Su’A’s offending should be divided into two categories:
(a)His non-violent offending (stealing and larceny); and
(b)His violent offending (affray, assault and reckless grievous bodily harm).
Mr Su’A’s violent offending occurred with a relatively high degree of frequency between 2016 and 2019.
Mr Su’A’s non-violent offending occurred with a lesser degree of frequency – one instance in 2012 and then twice again in 2017.
Noting his Australian imprisonment and his 2022 departure to New Zealand, there has been no further violent offending since 2019.
The Tribunal finds that there is a relatively high degree of frequency in the pattern of Mr Su’A’s violent offending.
Trend of increasing seriousness
After considering Mr Su’A’s criminal history[66], the Tribunal finds that it demonstrates a pattern of increasing seriousness in terms of his violent offending.
[66] Exhibit G1: G7.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Su’A’s repeated offending, if any.
After considering Mr Su’A’s criminal history[67], the Tribunal finds that his offending should be characterised as repeated.
[67] Exhibit G1: G7.
The Tribunal, after considering the evidence of Mr Su’A’s repeated offending before it through the lens of its cumulative effects, finds that his violent offending between 2016 and 2019 can be characterised as imposing significant physical, psychological and emotional costs on his victims, especially Mr Taylor, over the long-term, as well as financial loss associated with the inability to work and medical treatment.
His non-violent offending also imposed costs on the victims and on the Australian community in terms of the resources expended to counter his actions.
Using a weapon with intent to commit an offence, as Mr Su’A has also done[68], can cause significant physical and psychological trauma to the victims. This offending can cause victims to suffer from psychological distress, which can then impact their physical wellbeing, particularly if the incident causes anxiety, depression and/or post-traumatic stress.
[68] Exhibit G1: G7.
Mr Su’A’s repeated offending also imposed substantial and unwanted externalities, imposts and costs on the Australian community and its policing, judicial and corrective services systems.
The Tribunal finds that this paragraph carries substantial weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Su’A’s Visa.
Paragraph 8.1.1(1)(f)
On 21 May 2015 Mr Su’A completed an incoming passenger card and falsely declared that he had no criminal convictions despite a 2012 larceny conviction.
The Tribunal considers that this paragraph carries some weight, given the effluxion of time between 2012 and 2015 and the offence’s nature, in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Su’A’s Visa.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether Mr Su’A has re-offended since being formally warned about the consequences of further offending in terms of his Visa status.
There is no evidence before the Tribunal to indicate that Mr Su’A has done so.
The Tribunal considers that this paragraph carries neutral weight.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction.
The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of Mr Su’A’s conduct.
Tribunal finding: The nature and seriousness of Mr Su’A’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.

With reference to the applicable paragraphs addressed above, the Tribunal finds, after holistically synthesising the relevant evidence, that the totality of Mr Su’A’s unlawful conduct in Australia should be characterised as extremely serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk Mr Su’A poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view 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.’
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(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:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.’
In assessing the risk to the Australian community, the Tribunal has considered the oral testimonies, the documentary evidence and the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Su’A to engage in further criminal or other serious conduct.
Mr Su’A’s historic criminal conduct encompasses a broad consequential range of physical, psychological, financial, and societal effects. [69]
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Su’A to engage in further criminal or other serious conduct.
[69] Exhibit G1: G7, G9, G10 and G11.
If, in the future, Mr Su’A offends or engages in conduct like his historic criminal conduct, the nature of the harm to individuals would be material and involve physical, psychological and financial harm.
Further criminal conduct of the type Mr Su’A has previously engaged in would also impose material physical, psychological and financial costs and harm on the Australian community.
The Tribunal finds the nature of the harm to individuals or the Australian community should Mr Su’A engage in further criminal or other serious conduct in the circumstances of paragraph 8.1.2(2)(a) to be very serious.
The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has synthesised and then holistically considered the totality of the evidence that is relevant to assessing the likelihood of Mr Su’A engaging in further criminal or serious conduct.
The issues surrounding the consideration of “likelihood” under paragraphs 8.1.2(1) and (2) have been extensively considered by the Tribunal and superior courts.[70]
[70] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[71] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[72] On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[71] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[72] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [73]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
[Added emphasis]
[73] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer (as Her Honour was at the time) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour articulated the Tribunal’s task on this:[74]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[74] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Engaging in the task described by Justice Mortimer and applying the reasoning in Guo regarding past events, their regularity and the advent of new events, the Tribunal acknowledges:
(a)Mr Su’A’s offending between 2012 and 2019, especially his offending between 2016 and 2019.
(b)Mr Su’A’s repeated violent offending.
(c)Mr Su’A’s participation in the EQUIPS courses and in the New Zealand rehabilitation course.
(d)Oral testimonies from Mr Su’A, Ms Matavesi, Mr Escandor, Ms Dubuc, Mrs Su’A and Mr Salelavulu Su’A
The Tribunal first finds, considering Mr Su’A’s past offending and conduct, that there is “a risk” or a likelihood of Mr Su’A engaging in further criminal or serious conduct.
That risk can be dissected as the product of the nature of any further criminal or other serious conduct that Mr Su’A may engage in future if returned to the community and the likelihood of that criminal or other serious conduct happening.
The nature of any further criminal or other serious conduct that Mr Su’A may engage in in the future is considered above.
In considering the likelihood, and applying Guo, there is a significant likelihood that Mr Su’A would reoffend in ways that are similar to his past violent offending.
A consideration of the likelihood of Mr Su’A engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing this enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.”
In considering this risk and the possible level of violence, the Tribunal notes that much, if not all, of Mr Su’A’s offending seems related to the consumption of alcohol, his impulsivity, his failure to fully draw and apply appropriate conclusions from his past offending and his association with antisocial friends and acquaintances, and that no further violent offending has occurred since 2019. The Tribunal also notes the oral testimony set out above where Mr Su’A told a psychologist in 2016 that he had a reputation to live up to.
Mr Su’A presents with several static risk factors including the consumption of alcohol, his association with antisocial friends and acquaintances. It is unclear to the Tribunal to what extent his impulsivity remains as an issue.
Static protective or risk management factors such as his family, Ms Matavesi, his community work and his initial involvement in the music industry did not prevent his offending, especially between 2016 and 2019. His earlier imprisonment during this period did not do so either.
The evidence also states that at times during this period he sought in his statements to minimise his participation in his offending.[75]
[75] Exhibit R2: S17, page 68.
Turning to consider the evidence of rehabilitation and remorse in terms of the likelihood of Mr Su’A reoffending:
(a)Mr Su’A gave uncontested evidence is that he is in stable employment and has stable accommodation in New Zealand, has minimised his use of alcohol, engages in meaningful activities, has some access to family support and has deepened his relationship with Ms Matavesi.
(b)Mr Su’A attended the EQUIPS programs while imprisoned and a New Zealand course that appeared to have focused on alcohol and violence.
(c)There is no evidence before the Tribunal that Mr Su’A is currently undertaking any formal rehabilitation program or therapy while in New Zealand. He did testify that his daily practice is to avoid alcohol but did not expand on how he practices that beyond giving testimony about the current frequency of his drinking[76], nor did he address how he was going to avoid negative influences and antisocial contacts.[77] Mr Su’A deflected acknowledging in cross-examination that he had not engaged in a significant amount of treatment or rehabilitation programs.[78]
(d)Mr Escandor recommended that Mr Su’A undertake additional counselling.
(e)There is no evidence before the Tribunal of Mr Su’A undertaking additional therapies to address his underlying static risk factors, such as cognitive behavioural therapy to address alcohol abuse, attending a program like Alcoholics Anonymous or engaging in a targeted evidence-based program.
(f)While Mr Su’A asserted in regard to his index offence that he felt “a bit disappointed in myself being involved and very remorseful towards the family and the impact that me and my co-offender’s actions caused to him”,[79] there is no evidence before the tribunal of Mr Su’A acting to demonstrate his remorse, such as writing an apology to Mr Taylor.
(g)As evidenced by Ms Dubuc’s testimony, Mr Su’A cultural context is one that emphasises fraternal loyalty, support and decision-making over that of the individual. This cultural context appears to have been a significant underlying factor in much of Mr Su’A’s offending.
(h)Ms Dubuc’s evidence as to the inter-cultural conflicts prevalent in the Mount Druitt region and the male group dynamics of Mr Su’A and his associates, considered with Mr Su’A’s history of offending, imply that the risk management effects of Ms Matavesi and Mr Su’A’s family may be insufficient to prevent his offending in the future.
[76] Transcript, page 29, lines 1-15.
[77] Transcript, pages 35, line 30 – page 36, line 2.
[78] Transcript, page 32, lines 1-6.
[79] Transcript, page 19, lines 42-43.
Synthesising the above and considering them holistically, the Tribunal concludes that Mr Su’A’s static risk factors remain as real risks, that his static risk management factors such as Ms Matavesi, his family and his work were ineffective in preventing his historic offending and that there is insufficient evidence of new dynamic risk management factors that could improve matters or outweigh the risk factors. If Mr Su’A returns to Australia he would also be back, to some extent, within the cultural context and male group dynamics that likely influenced his offending. While Mr Su’A evidenced a level of insight into his offending and its causes, the Tribunal does not consider this level of insight and ownership to be sufficient or adequate to ensure that he avoids offending in the future, based on its observations of Mr Su’A and its consideration of the evidence.
In reaching this conclusion, the Tribunal is cognisant of Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 270 and Pillay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1535 but notes that there is no reliable evidence before it specifically linking Mr Su’A’s alleged sexual abuse and his subsequent offending beyond the nexus, recognised by the courts when sentencing Mr Su’A, of the abuse and his subsequent abuse of alcohol.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that there is a risk to the Australian community of Mr Su’A engaging in further criminal or other serious conduct.
Given the balance of static and dynamic risk and risk management factors, the Tribunal considers that this risk is significant.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs substantively and significantly in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Su’A’s Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Both parties contend that is not a relevant consideration in this matter.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration carries neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Respondent’s contentions on this point are concisely stated:
(a)little weight should be given to the fact that Mr Su’A’s immediate family (consisting of his parents and his two brothers) reside in Australia;
(b)the Respondent concedes that Mr Su’A spent his formative years in Australia after the age of eight;
(c)this consideration weighs in favour of setting aside the delegate’s decision to cancel the Visa.
Mr Su’A's submissions on this point can be summarised as follows:
(a)Mr Su’A’s immediate family and his partner of over 12 years reside in Australia.
(b)He also has members of his extended family – aunts and cousins – living in Australia.[80]
(c)These individuals will suffer adverse emotional psychological impacts and consequential detrimental effects if the delegate’s decision is not set aside.
[80] Exhibit G1: G14, page 116.
The Tribunal’s Consideration
Relevantly here, Mr Su’A's immediate family members are either Australian citizens or permanent residents. He also has members of extended family in Australia.
Balanced against this is Ms Sinuia Su’A’s statement:
“[21] If Salec is unsuccessful in this appeal and his visa isn’t reinstated, our family will have to move back to be with him in New Zealand. This is a decision that has been discussed as family and not taken lightly.”[81]
[81] Exhibit A2: Applicant’s Tender Bundle, SS1 at page 3.
In addition to the contentions above regarding his immediate family and his formative years in Australia and his relationship, the Tribunal heard evidence from Mr Escandor and Ms Dubuc regarding Mr Su’A’s involvement with the Street University organisation.
Both witnesses alluded to his leadership qualities and ability to mentor others, something that appears to have been borne out in the sentencing decision of Judge Hanley with a character reference from one mentee.
Although obviously reluctant, Mr Su’A also participated in his family's religious worship.
It is also clear from Ms Matavesi’s evidence that she and Mr Su’A have deeply considered and explored their relationship since 2019 and have made plans for their relationship to deepen going forward.

While Ms Matavesi was honest in describing her plans to move to New Zealand if necessary, it was also clear that she has made extensive plans for a shared life with Mr Su’A in Australia and if necessary moving away from Sydney to Brisbane even at the cost of disrupting her current care arrangements for her mother and grandmother.
Ties and social links to the Australian community also arise from his involvement in the music industry. It is clear from the evidence that Mr Su’A has and continues to be a significant member of the OneFour rap group. It is also clear that OneFour has a significant following in addition to attracting considerable mixed public attention. The Tribunal's role is not to comment or critique on OneFour’s music but simply to consider its popularity, and by necessary implication, the linkages it gives Mr Su’A to the Australian community.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
This consideration carries some weight in favour of setting aside the delegate’s decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
Relevantly,
2This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
3If 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.
4In 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);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Respondent submits that:
(a)Mr Su’A submits that his younger brother, S aged 15, must be considered as a factor weighing in favour of revocation but acknowledges that his parents care for S;[82]
(b)this submission should be qualified by the facts that Mr Su’A was in custody between July 2019 to December 2021 and has resided in New Zealand since May 2022, creating significant periods of absence or limited meaningful contact;
(c)Mr Su’A does not fulfil a parental role for his brother;
(d)there are several methods by which Mr Su’A would be able to remain in contact with his brother;
(e)the Respondent contends that S’s best interests should attract no more than nominal weight in favour of revocation.
[82] Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions at [42].
Mr Su’A’s submissions asserts:
(a)whilst it is acknowledged Mr Su’A’s parents provide parental care to S, Mr Su’A and S enjoy a sibling relationship sufficient, if the delegate’s decision is not set aside, for Mr Su’A’s absence to have an emotional, detrimental impact on S;
(b)this consideration should weigh in favour of revocation.
Given the limited evidence from the younger brother on this point the Tribunal's consideration on this point is qualified and circumscribed.
Mr Su’A’s Personal Circumstances Form states that he has nieces and nephews in Australia. Their ages and their relationship with Mr Su’A is unclear.
Conclusion: Primary consideration 4: Best Interests of Minor Children In Australia Affected By The Decision.
This consideration carries a slight weight in favour of setting aside the delegate's decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[83]
[83] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[84]
[84] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[85]
[85]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that Mr Su’A has committed crimes of a violent nature. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(b)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(c)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(d)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(e)The nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
(f)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act.
Mr Su’A held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 11 June 2020. This Visa allowed its holder to remain in Australia indefinitely.[86] Consequently, the Visa cannot be classified as a limited stay visa.[87]
[86] Reg 444.511 of Migration Regulations 1994 (Cth).
[87] MCGLONE AND MINISTER FOR IMMIGRATION ,CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2022] AATA 3202 AT [194]; WALKER V MINISTER OF HOME AFFAIRS [2020] FCA 909 AT [29].
This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
Tribunal’s Consideration
Mr Su’A has lived in Australia since he was eight and began offending in 2012.
The Respondent submits that:
(a)Mr Su’A concedes he has breached the Australian community’s with respect to his very serious criminal convictions for breaching Australian laws.[88]
(b)The Respondent accepts, as Mr Su’A contends, that he may be entitled to a higher level of tolerance for his criminal history by virtue of the time he has spent in Australia, in accordance with paragraph 5.2(4) of Direction 99.
(c)However, the Respondent contends that even a higher level of tolerance would be insufficient to ameliorate the very heavy weight to be given to this consideration, in sor rehabilitation, together with the highly serious nature of the applicant's offending and the risk of reoffending.
(d)This consideration must weigh against Mr Su’A, and in the circumstances, the Respondent contends that it should be given very significant weight.
[88] Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions at [46].
Mr Su’A’s representative contends and concedes this consideration weighs against setting aside the delegate's decision to cancel the Visa.
The combination of Mr Su’A’s criminal record, the violent and dangerous nature of his offending, the dire consequences that may flow from such further offences and the likelihood of Mr Su’A re-offending, would give rise to an expectation on the part of the Australian community that his Visa should remain cancelled.
Australia may afford a higher level of tolerance of criminal or other serious conduct by
non-citizens who have lived in the Australian community for most of their life. Mr Su’A has done so.
The Tribunal has also found the totality Mr Su’A’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a
non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Su’A poses ‘a’ risk of re-offending and that the risk is significant.
The Tribunal is satisfied that Mr Su’A has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in or return to Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs substantively and significantly in favour of affirming the delegate’s decision not to revoke the mandatory cancellation of Mr Su’A’s Visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): Legal consequences of the decision
Neither party contends that this consideration is at issue.
There is no claim, and otherwise nothing on the material to suggest to the Tribunal that Australia’s non-refoulement obligations are enlivened in respect of Mr Su’A.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal finds that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider 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.
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Su’A, if his Visa is not restored, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors mentioned in the above preceding paragraph into account.
Mr Su’A’s representative contends that this consideration bears moderate weight in favour of revocation as Mr Su’A has been removed to a country where he has minimal ties and this impacts his ability to find employment and mental health. Whilst he has an aunt in New Zealand, this is not sufficient to ameliorate the social impediments he faces being separated from his support network and family who reside in Australia.
The Respondent contends that:
(a)This consideration is only relevant where a non-citizen remains in Australia and has yet to be removed to their home country, having regard to paragraph 9.2(1) of Direction 99 which refers to, "the extent of any impediments that the non-citizen may face if removed from Australia to their home country"[89] . As the applicant has resided in New Zealand since May 2022, the Minister contends that this consideration is not relevant.
(b)However, if the Tribunal is of the view that this consideration is relevant, the Respondent contends that the matters raised by Mr Su’A do not present insurmountable obstacles to establishing himself and maintaining basic living standards in New Zealand. Mr Su’A is a relatively young man[90] and as a New Zealand citizen, the applicant has access to levels of healthcare and welfare in New Zealand commensurate with other citizens in that country.[91]
(c)An article published by Matt Bungard at the Sydney Morning Herald dated 28 November 2019, states that the rap group OneFour, of which the Applicant is (or was) a member, would travel to Auckland to perform a sold out show.[92] An article by Sarah Liversidge and Antoinette Milienos at Daily Mail Australia dated 9 January 2023, states that there is video footage of the Applicant being welcomed back to New Zealand and performing at the Bay Dreams festival in Tauranga, New Zealand, to hundreds of fans.[93] The fact that the Applicant has performed shows in New Zealand, including after he has returned to live in New Zealand, demonstrates that the Applicant has employment prospects in New Zealand. There is no evidence that the Applicant cannot maintain basic living standards.
(d)However, if the Tribunal considers that the consideration remains relevant, the Minister contends that for the reasons set out above, little if any weight should be attributed to this consideration in favour of revocation.
[89] Paragraph 9.2(1) of the Direction.
[90] Ibid.
[91] Paragraph 9.2(c) of the Direction.
[92] Exhibit R2: S2, page 2.
[93] Exhibit R2: S3, pages 4-10.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health

Mr Su’A is 30 years old.
There was no evidence of physical ill-health before the Tribunal.[94]
[94] Transcript, page 36, lines 4-10.
Having seen Mr Su’A give testimony by video and based on the evidence before it, the Tribunal does not consider that he suffers any major health problems current time whether chronic or current.[95]
[95] Transcript, page 36, lines 4-10.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal concludes based on the material before it that Mr Su’A would not face any substantial language or cultural barriers in New Zealand, especially based on his current residence and his oral testimony.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, as a New Zealand citizen, Mr Su’A has access to levels of healthcare and welfare in New Zealand commensurate with other citizens in that country.[96]
[96] Paragraph 9.2(c) of the Direction.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that Mr Su’A, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, taking into account each of the specific factors set out in paragraph 9.2(1) of the Direction.
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Su’A would not face any significant impediments in New Zealand, particularly in light of him residing there at present.
This consideration carries a neutral weight.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
Tribunal finding: Other Consideration (c): Impact on victims.
There is no relevant evidence before the Tribunal addressing the impact of a decision under s 501 of the Act on members of the Australian community, including any victim of Mr Su’A’s offending.
The Tribunal finds that Other consideration (c) carries a neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Su’A cannot remain here.
Both Ms Samuta and Ms Gutmann acknowledge[97] that Mr Su’A’s involvement with OneFour enliven this consideration.
[97] Transcript, pages 118, 119, 127 and 128.
Balanced against this is the fact that Mr Su’A can and has toured with OneFour in New Zealand.
The Tribunal concludes that if Mr Su’A is not permitted to return to Australia there may be an adverse impact on OneFour.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Su’A cannot remain here.
The Tribunal finds that paragraph 9.4 is relevant and carries some weight in favour of setting aside the delegate’s decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·this consideration is neutral.
Other Consideration (b) - extent of impediments if removed:
·this consideration carries a neutral weight.
Other Consideration (c) - impact on victims:
·this consideration is neutral.
Other Consideration (d) – Impacts on Australian business interests:
·this consideration carries some weight in favour of setting aside the delegate’s decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[98]
[98] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
While Mr Su’A’s sexual abuse allegations are considered above, nothing precludes the Tribunal from considering them again.[99]
[99] Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870 at [25].
While Mr Su’A raised the allegations and relied on them to an extent in terms of the causes of his offending, the claims were not substantiated.
Consequently, the Tribunal accords the claims a neutral weight.
There are no other additional considerations before the Tribunal in relation to this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Su’A does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·this consideration weighs substantively and significantly in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·this consideration carries neutral weight.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·this consideration carries some weight in favour of setting aside the delegate’s decision to not revoke the mandatory cancellation Mr Su’A’s Visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·this consideration carries a slight weight in favour of setting aside the delegate's decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
Primary Consideration 5 – expectations of the Australian community:
·this consideration weighs substantively and significantly in favour of affirming the delegate’s decision not to revoke the mandatory cancellation of Mr Su’A’s Visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
Synthesising a comprehensive, holistic and integrated view of this matter, Tribunal acknowledges that this evidence in this matter and the consequential findings are finely balanced.
However, when considered and assessed in their entirety, the findings of the primary considerations, the other considerations in the Direction, together with the additional consideration favour on balance affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Su’A’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 December 2022 to not revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) Subclass 444 Special Category visa.
206.

I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

................[SGD].............
Associate
Dated: 22 January 2024

Dates of hearing: 7 and 8 November 2023

Solicitor for the Applicant: Ms Jennifer Samuta (Principal)

Samuta McComber Lawyers

Solicitor for the Respondent: Ms Gabrielle Gutmann (Associate)

Minter Ellison Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1-12)

A

04.05.2023

04.05.2023

A2

Applicant’s tender bundle (bookmarked 1-9, paged SS1-SS16)

A

Various

02.11.2023

A3

Final Statement – Salec Su’A (paged 1-4)

A

03.11.2023

03.11.2023

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-11)

R

22.05.2023

22.05.2023

R2

Supplementary G Documents (bookmarked S1-S34, paged 1–173)

R

Various

19.05.2023

R3

Respondent’s further evidence (video and image)

R

Various

23.05.2023

G1

G Documents (bookmarked G1-G24, paged 1-176)

R

Various

10.03.2023

Dates of hearing:	7 and 8 November 2023
Solicitor for the Applicant:	Ms Jennifer Samuta (Principal)
Samuta McComber Lawyers
Solicitor for the Respondent:	Ms Gabrielle Gutmann (Associate)
Minter Ellison Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-12)	A	04.05.2023	04.05.2023
A2	Applicant’s tender bundle (bookmarked 1-9, paged SS1-SS16)	A	Various	02.11.2023
A3	Final Statement – Salec Su’A (paged 1-4)	A	03.11.2023	03.11.2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-11)	R	22.05.2023	22.05.2023
R2	Supplementary G Documents (bookmarked S1-S34, paged 1–173)	R	Various	19.05.2023
R3	Respondent’s further evidence (video and image)	R	Various	23.05.2023
G1	G Documents (bookmarked G1-G24, paged 1-176)	R	Various	10.03.2023