Tala and Minister for Home Affairs (Migration)

Tala and Minister for Home Affairs (Migration) [2018] AATA 4207 (12 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5113
Re:Lolagi Tala
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 November 2018
Place:Sydney

The decision under review is affirmed.
...........................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations considered – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – International non-refoulement obligations – strength, nature and duration of ties – Impact on Australian business interests – impact on victims – extent of impediments if removed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Migration Act 1958
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
AFY18 v Minister for Home Affairs (2018) FCA 1566
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Dinkha and Minister for Home Affairs (Migration) (2018) AATA 3037
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Fu (Migration) [2018] AATA 732
G v Minister for Immigration and Border Protection [2018] FCA 1229
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Minister for Immigration and Citizenship v SZJSS (2010) HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13
Murphy v Minister for Immigration and Border Protection [2018] AATA 750
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634
Saleh and Minister for Immigration and Border Protection (2017) AATA 367
Shi v Migration Agents Registration Authority [2008] HCA 31
Sabharwal v Minister For Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Williams v Minister for Immigration and Border Protection 92014) [2014] FCA 674
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 November 2018

Mr Lolagi Tala has lodged an appeal with this Tribunal against a decision by the Delegate of the Minister to cancel his visa.
AN INITIAL EVIDENTIARY ISSUE
Section 33(1A) of the Administrative Appeals Tribunal Act 1975 authorises the Tribunal to hold a “directions hearing” at which it sets various dates by which proceedings in the Tribunal must be completed, dates by which documents must be lodged or evidence filed. These dates are related to certain statutory requirements under the Migration Act 1958 (the Act) such as section 500(6J) which provides that the Applicant must notify the Minister at least two business days before the Tribunal hearing of material upon which it seeks to rely and section 500(6L) which requires the Tribunal to deliver its determination within 84 days of the notification of the reviewable decision to the Applicant.
On 18 September 2018 the Tribunal held a directions hearing at which it specified that the Respondent was to file its submissions to the Tribunal no later than 22 October for a hearing to take place on 5 November 2018.
Prior to that date the respondent provided the Tribunal with its evidence and its required Statement of Facts, Issues and Contentions. At the hearing on 5 November the Respondent advised that it had posted additional material (referred to as the “Summons Material”) to the Tribunal on 24 October, however for some reason that material appeared not to have been received by the Tribunal. The Respondent also presented, on the day, an additional file of material (the “Supplementary Summons Material”).
Neither of these files of summons material had been considered by the Tribunal prior to the hearing but, more to the point, the Applicant denied ever having received either set of files.
In order to ensure that the Applicant was afforded maximum protection of his rights to fairness and natural justice, the Tribunal declined to take either the Summons Material or the Supplementary Summons Material into evidence in the form in which they were presented. The Tribunal, in discussion with both parties agreed that certain material, of a very limited nature would be admitted as evidence. In particular a set of Fact sheets presented by the NSW Police related to details of an alleged assault by the Applicant in August 2011; a report by the NSW Police and the Australian Federal Police related to an alleged assault by the Applicant in March 2017 and a series of references on behalf of the Applicant, were identified and by agreement of all parties admitted as evidence. The Tribunal adjourned proceedings for a short time in order to allow all parties to read and study the documents prior to the resumption of the Tribunal’s formal hearing.
MR TALA’S PERSONAL HISTORY
Mr Tala was born in Samoa in April 1988 and resided there until he was 11 years of age. He was the child of a broken family and while in Samoa he was raised by his grandparents. During his period of living in Samoa he made one visit to Australia (aged 7) for a period just under three months.
His grandparents then took him to New Zealand in 1999 but unfortunately his grandmother passed away in 2000. Mr Tala says that this had a significant emotional impact upon him and it resulted in his being sent to Australia to live with an uncle and aunt who he had never previously met. He arrived on 20 September 2000, aged 12, holding a Subclass TY-444 Special Category (Temporary) Visa valid for three months.
Prior to his arrival in Australia Mr Tala’s grandparents (who had effectively adopted him and were legally responsible for him) obtained New Zealand citizenship and apparently this extended to Mr Tala. Although the exact details are unclear it is accepted that Mr Tala is a citizen of New Zealand.
At age 17 Mr Tala returned to New Zealand where he remained for just under 1 year (from 20 August 2005 to 4 July 2006). He also spent a brief period (2 December 2007 to 15 January 2008) in New Zealand but, apart from these two visits has otherwise resided continuously in Australia
In Australia Mr Tala lived initially in Sydney and completed his Higher School Certificate in Year 12 at Campbelltown Performing Arts High School where he played a great deal of sport and was a member of a local Rugby League team. In 2005 he moved to Brisbane to live with another aunt and it was here that, in his own words, he “first committed a crime and then I started hanging out with the wrong crowd and started doing the wrong things.”[1] He was 17/18 years of age at the time.
[1] Section 501 – G Documents at [112], statement of Mr Tala dated 10 August 2018.
Some time in 2008 Mr Tala met Ms Tammy Charles and in July 2009 their daughter was born. They lived together and this relationship continued, as Mr Tala put it “on and off” until they physically separated in 2011 when Mr Tala moved out of the home they were sharing in Bateman’s Bay. Nevertheless Mr Tala continued to be friendly with Ms Charles and continued to be involved in the care and support of his daughter.
MR TALA’S CRIMINAL HISTORY
Mr Tala’s first recorded conviction was in the Beenleigh Magistrates Court on 9 September 2005 where he was convicted of possessing utensils or pipes for use in relation to drugs and was fined.[2] It is clear from a study of Mr Tala’s movements[3], and it is not contested by the Respondent, that Mr Tala was out of the country at the time of these court proceedings and was not, in his absence, legally represented. In this instance he did not have the opportunity to speak in his own defence and while the Tribunal must take note of the fact of the conviction and not seek to “go behind” it[4], it does not regard this offence as a significant matter to be held to the Applicant’s discredit.
[2] Section 501 – G Documents at [41].
[3] Section 501 – G Documents at [83].
[4] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ, Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 at [581] per Fox J.
Between September 2005 and February 2018 Mr Tala has been before the courts on some 23 separate occasions and found guilty or convicted of some 40 criminal charges. He has been sentenced to at least 10 terms of imprisonment ranging from one month (inmate possessing a mobile phone) to 18 months (assault occasioning actual bodily harm and on another occasion driving while disqualified and possessing prohibited drugs). In all instances where Mr Tala appealed his convictions they were confirmed.[5]
[5] Details are set out in the National Police Certificate at Section 501 – G Documents at [25-42] and summarised in the Respondent’s Statement of Facts, Issues and Contentions pages [1-4].
Of particular note is the fact that on one occasion Mr Tala committed further offences (shoplifting and dishonestly obtain property by deception) when he was “on the special opportunity – the conditional liberty – of his Drug Court program.”[6] He also committed offences (shoplifting and assault of security guards) while on bail.[7]
[6] Section 501 – G Documents at [44], sentencing remarks of Senior Judge Dive.
[7] Ibid at [48].
The nature of Mr Tala’s offences which include an element of violence include: assault occasioning actual bodily harm; common assault; contravene prohibition/restriction in Apprehended Violence Order (domestic); resist officer in execution of duty and maliciously inflict grievous bodily harm.
Other offences include possession of drugs; shoplifting; offences of dishonestly obtaining property; driving while disqualified and driving with alcohol or drugs in his bloodstream. The Respondent also draws attention to the fact that on his incoming passenger cards (4 July 2006 and 15 February 2008) Mr Tala failed to declare his criminal convictions as required.[8]
[8] Section 501 – G Documents at [81-82].
The Tribunal also notes that while in Immigration Detention Mr Tala committed a number of offences, some 13 in total, involving matters such as possession of contraband, possession of a weapon and abusive and aggressive behaviour.[9]
[9] Ibid at [71-78].
Similarly, during his periods of custodial incarceration he was charged with nine offences ranging from damaging property to drug possession and including five counts of intimidation.[10]
[10] Ibid at [172-173].
Finally, it should be recorded that on two separate occasions Mr Tala, while in immigration detention (at Villawood) applied to be removed from Australia. On 7 March 2017 he signed a “Request for Removal from Australia” form under section 198(1) of the Act.[11] This section provides:
“198(1) Removal on Request An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.”
[11] Ibid at [230].
This request was referred to NSW Removals for action and in it Mr Tala has stated that his “Preferred Destination” is “Auckland, New Zealand.”[12]
[12] Ibid at [228-229].
However on 12 April 2017 officers from the Australian Federal Police attended at Villawood and arrested Mr Tala, charging him with offences for which he was convicted in September 2017 and sentenced to imprisonment for 18 months.[13]
[13] Ibid at [231].
Following the completion of the custodial part of that sentence on 11 March 2018 Mr Tala was returned to immigration detention where, on 20 April 2018 he signed another formal Request for Removal. This was not acted upon immediately and on 22 May 2018 Mr Tala made a formal withdrawal of the request, giving as his reason:
“Detainee wishes to remain I (sic) A/a due to ill health of detainee’s child’s mother (ex-partner). Detainee has an ongoing revocation application.”[14]
[14] Ibid at [233-234].
When the Tribunal asked Mr Tala about these requests he proffered the reason for them being made that he was depressed at the time and felt that he was without any degree of support or understanding. This explanation does not sit comfortably with all his other expressions of how much love and support he has always had from members of his family in Australia.
THE REVIEWABLE DECISION AND THE LEGISLATIVE FRAMEWORK
Before detailing the immediate course of events which have led to the Tribunal’s hearings it is necessary to note that on 20 November 2014 Mr Tala, then in custody at the Parklea Correctional Centre, was sent a letter by the Department advising that they were considering cancellation of his visa. He was invited to comment upon the details of this Notice[15]. In evidence Mr Tala maintained that he never received such a notice and in any event there is no evidence that he responded to it. Nor is it clear what immediate steps, if any, the Department took thereafter. This Notice is not further referred to either in the Delegate’s decision on the visa revocation nor in the Respondent’s Statement of Facts, Issues and Contentions.
[15] Section 501 – G Documents at [238-241].
On 18 October 2016 a Delegate of the Minister cancelled Mr Tala’s visa (TY Subclass 444 Special Category (Temporary)) on the basis that Mr Tala had a substantial criminal record as defined under the Migration Act 1958 (the Act).
Mr Tala was given the opportunity to seek a revocation of this decision and he did so on 24 October 2016. The matter was reconsidered by the Delegate but the cancellation decision was affirmed on 31 August 2018. It is from that decision that Mr Tala appealed to this Tribunal on 5 September 2018. The Tribunal heard the matter on 5 November 2018 with the statutory obligation to publish its determination by 23 November 2018.
It is not necessary to set out the full text of the relevant parts of the Act. They may be summarised thus:
·If a visa holder is found by the Minister to have failed the character test established under the Act because they have a “substantial criminal record” which is defined by section 501(7)(c) as meaning to have “been sentenced to a term of imprisonment of 12 months or more”
·then the Minister must cancel that persons visa (section 501(3A)). This is not a discretionary matter for the Minister, the cancellation is mandatory.
·When such a decision is made it must be notified to the person concerned and they must be given the opportunity to make representations to the Minister about why that cancellation decision should be revoked (section 510CA (3)).
·Where a person has been found to have failed the character test, and has made such representations to the Minister, then the Minister may revoke the mandatory cancellation decision if it is established that there is “another reason why the original decision should be revoked” (section 510CA(4)(b)(ii)).
·In considering whether or not to revoke the visa cancellation, any decision-maker (that is the Delegate or this Tribunal, but not the Minister them self) must have regard to the principles and specific requirements of Ministerial Direction 65 (see below).
·In the event that the decision is made not to revoke the cancellation that decision (the non-revocation decision – the “reviewable decision”) may be appealed to this Tribunal (section 500(1)).
·The Tribunal must observed certain procedures in its hearing of any such application and must publish its decision within 84 days after the day on which that decision was notified to the person (section 500(6L).
THE APPLICANT’S CASE
Mr Tala askes the Tribunal to revoke the Delegate’s visa cancellation on a number of grounds.
In his formal application to the Tribunal he states:
“I believe the representation I have submitted have not been thoroughly observed or taken into consideration I feel certain segments have been disregarded or overlooked.”[16]
[16] Ibid at [4].
In his original request for the revocation of the mandatory visa cancellation he enumerates the following reasons:
“* All my family is in Australia
*I have a daughter in Australia, 7 years of age
*I don’t have any family support back in New Zealand
*I have been in Australia more than half of my life
* Im planning to seek employment upon my release
*My daughter needs me around
*I support my daughter financially.”[17]
[17] Ibid at [91].
His daughter (born 2009) lives with her mother in Ganmain, New South Wales. This is town in the Riverina District to which Ms Charles moved because she was under the care or supervision of the Department of Family and Community Services and was relocated there by that Department. She indicated that she enjoyed living in that part of the State and was close to members of her own family in her home town of Narrandera. Obviously the physical separation from Mr Tala who has remained in Sydney makes it difficult to maintain contact, although both parties told the Tribunal that Mr Tala and his daughter usually speak each day on the telephone or by FaceTime.
Both parties also told the Tribunal that were Mr Tala to be allowed to remain in Australia he might seek to move closer to the family in the Riverina, although this is somewhat at odds with Mr Tala’s other claims that if he were to remain he would immediately take up offers of employment which he has had in Sydney.
Further he writes:
“My relationship with my daughter means the world to me as she is my only child, there for I play a big role in her life as a father figure, a provider on (sic) of her financial needs and a big role model in her life.”[18]
[18] Ibid at [100].
He goes on to described how he maintains regular (almost daily) contact with his daughter (electronically) and when he can, visits her or takes her to school. When he can he spends time with her. He states:
“The impact that would have on my daughter will be very big if I will be deported back to New Zealand. It will be very hard on her because I am very involved in her life …. I wont be able to live up to the role that I play as a father that I play in her life, or wont be able to give her the love and support she needs.”[19]
[19] Idem.
He writes elsewhere of his daughter being his “priority” and that, “This time apart from my daughter I can never get that time back. But I’m willing to spend my whole life making it up to her.”[20]
[20] Section 501 – G Documents at [113].
Mr Tala provides details of his father, mother, brother, four sisters, aunt and six cousins all of whom live in Australia and are Samoan nationals. He also states that there are 15 other aunts, 20 uncles, 10 nieces, 4 nephews and 30 cousins who are part of his extended family. Not all live in Australia.[21]
[21] Ibid at [101].

In relation to his offending behaviour, Mr Tala states:
“Please take into consideration that my offences are not that serious they are but I have met a lot of people worse of (sic) than me, I am a good member of the community I work when Im not in prison.”[22]
“I honesty doubt that I will re-offend again knowing now that my visa has been cancelled I can’t afford to re-offend again because I have alot to loose (sic), and I need to be there outside for my daughter.”[23]
[22] Ibid at [102].
[23] Idem.
Mr Tala provides details of his sporadic employment history (2006-2009; 2011-2012; 2012-2014 and 2104-2015) in a variety of jobs including machine operator, pick and pack; waterproofing and bricklaying.
He indicates that he has done voluntary work in a “Youth off the Streets” project for his local church and that he has been active as a fundraiser for the church and that his family and he participate in many church activities.[24] These claims are supported by a letter of support from Senior Pastor Fereti Moe of the Faith City Church, Campbelltown who states that he has known Mr Tala for over twenty years and finds him to be a person now remorseful for his crimes.[25]
[24] Section 501 – G Documents at [103].
[25] Ibid at [108].
In terms of possible impediments were he to be removed to New Zealand, apart from those involving separation from his daughter and family he states:
“I fear that if I go back to New Zealand I will be straight back into the gang life, most of my family back there is involved in a lot of criminal activities.”[26]
and
“I feel that if I were to return to New Zealand I would be influenced to get into the gang lifestyle. Any family that I do know over there are heavily involved in gangs.”[27]
[26] Ibid at [104].
[27] Ibid at [105].
EVIDENCE IN SUPPORT OF MR TALA
Mr Tala has also put before the Tribunal a number of certificates to show that he has completed a number of programmes while in custody, including the “Getting Smart” alcohol and drug management and “CALM”, anger management programmes at South Coast Correctional Centre. He provided certificates from TAFE (electrical cord assembly and connection); Metro Screen (film production workshop) and the Furnishing Industry Association (various trade competencies).[28]
[28] Applicant’s Submission at attachment [1].
Prior to, or at the hearing Mr Tala also submitted letters of support from:
Senior Pastor Moe – see above
·Ms Wendy Collins who has known him personally for 15 years and recognises that he has “had some troubles in the past with the law however I believe that the company he was keeping at the time has contributed to this.” She believes him to be a “respectful and helpful person,” a “good worker” and that it wold be in the best interests of his family were he to be allowed to stay in Australia.[29]
·Ms Tammy Charles, his ex-partner and mother of his child who speaks of his regret and remorse and the extent to which he maintains contact with their daughter. She obviously still supports him as she writes that, should he be allowed to remain he plans to move close to their location, “and that makes us both happy” and she writes of a willingness to help him find accommodation “so he can have his daughter stay with him” and employment.[30]
·Ms Stacey Taufahema, has been his current partner for 2.5 years who describes him as “a very genuine man who I believe, even though was caught up in the wrong crowd is a changed man.” She writes that it would be very much in the best interests of his daughter were he to be allowed to remain; that he is a hard worker who would “have no issues settling back into the community” and who having “served his time” would be willing to undertake any necessary courses to prove that he deserved the restoration of his visa.[31]
·Ms Tinah Williams, (dated August 2011) a para-legal with a firm of solicitors, with whom Mr Tala had some sort of intimate relationship for a 6 to 12 month period in 2010/2011 who writes that in that period of time she has seen positive change in him and that, “he spends more time with his daughter, attends most if not all of his probation meetings, he’s slowed down in his partying and as of late has decided to stop drinking so he can make better choices. She goes on to say that “what he needs is guidance. Someone to look up to and point him in the right direction.”[32]
·Ms Sarah Dodds and Shawn McKinley (dated August 2011) who are respectively a manager and a youth worker with the Father Chris Riley’s Youth off the Streets project who write that Mr Tala has attended some of their Young Dad’s Program and helped with virus activities at the centre. They say that he needs further support and they indicate their centre’s programmes which could provide this.[33]
·Mr Adrian Gillespie (dated August 2011) who is a “provisional psychologist” with Father Chris Riley’s Youth off the Streets project writes to the effect that he has provided some counselling sessions for Mr Tala, although Mr Tala also failed to attend a number of such planned sessions. He states that, “It is my opinion that he requires further counselling intervention to address both the alcohol and aggression issues” but that equally he “has shown excellent insight into his involvement and behaviours that led him to be in his current position.”[34]
·There is an undated letter (but presumably around the same time as those of August 2011 as all appear to be submissions to a presiding Magistrate at the time) from a former employer (Nick Ahlam of Ahlams Waterproofing Technologies and Service P/L) offering support for Mr Tala and describing him as a good person and “an uncle figure to my 3 daughters”.[35]
[29] Ibid at attachment [4].
[30] Section 501 – G Documents at [106].
[31] Ibid at [107].
[32] Supplementary Summons Material at [45].
[33] Ibid at [44].
[34] Ibid at [46].
[35] Ibid at [48].
Oral evidence was given to the Tribunal by Mr Tala’s sister Ms Sara Moe and his ex-partner Ms Tammy Charles. Their evidence was to the same effect, namely that Mr Tala was an important figure in relation to the support of his daughter and that there would be great hardship suffered by all members of the family were he to removed back to New Zealand. Ms Moe confirmed that the family has no ties to any relatives or associates in New Zealand.
Ms Moe was familiar with the details of Mr Tala’s criminal history and blamed most of Mr Tala’s offending behaviour on the misuse of alcohol. She spoke of the extensive network of family support in Australia and the family’s close association with church activities.
Ms Charles was not familiar with the extent of Mr Tala’s criminal record, indicated the Mr Tala provided some financial support for the family when possible and, importantly, denied that any AVOs which had been taken out against Mr Tala had been at her request or initiative.
APPLICANT’S PERSONAL TESTIMONY
Mr Tala was self-represented in these proceedings but nevertheless gave a very full and frank account of himself as a witness. He made clear statements on his own behalf both in terms of opening comments and in concluding the submissions before the tribunal. He answered the questions out to him by both the Respondent and the Tribunal in a frank and open manner.
Numerous members of his family attended the Tribunal hearing to provide emotional and familial support throughout. Indeed, in his evidence Mr Tala spoke of having an almost “perfect” childhood in the love and care of his grandparents and with his uncle, aunt and their family.
There is no doubt that he expressed considerable remorse for his actions and that he claimed on repeated occasions that he had made changes in his life. He put it in terms of “what you see in the court records is not what you see before you today.” He repeatedly emphasised that his commitment was to his daughter and her wellbeing and the he would find it devastating should he be removed from Australia.
In relation to his criminal offences, he sought to characterise them as essentially “stupid’ in their origins and occurring largely as a result of being under the influence of drugs and/or alcohol.
On a number of occasions he disputed the official record as it appears in police or court documentation, for example stating that in relation to an assault on a security guard during a shoplifting offence it never happened. He said: “I never once laid a hand on a security guard.” This directly contradicts the comments of the sentencing Magistrate[36] and given that Mr Tala both pleaded guilty to the offence and had legal aid representation, the Tribunal is inclined to accept the description of the court.
[36] Section 501 – G Documents at [48].
Mr Tala stated several times that he did not know what he was pleading guilty to. In his words: “Some of things I never done I was just part of it.” The Tribunal is sceptical about this claim given that he also says that he had legal aid representation on each occasion. It must be assumed that the legal aid officers explained fully to their client the meaning and extent of a guilty plea.
He also denied most of the recorded infringements while in custody as being things he had never done but appearing on his record as a result of officers “who write up anything they like – even if they just don’t like inmates on the day.”
Mr Tala, while agreeing that he had committed numerous offences and that all acts of violence were “serious” repeatedly sought to minimise the nature and impact of the charges listed as being “common assaults”. He denied many of them or dismissed them as essentially trivial. The Tribunal was not taken through each of these in detail by either party but has to conclude that Mr Tala often failed to appreciate the gravity and significance of the repeated charges which involve various levels of violence from common assault, to malicious inflict grievous bodily harm or assault occasioning actual bodily harm. The Tribunal does however accept that there is no corroborating evidence that he was ever involved in acts of domestic violence and Ms Charles’ testimony on his behalf reinforces this conclusion for the Tribunal.
THE RESPONDENT’S CASE
The Respondent contends that Mr Tala is a person with a long history of offending; that numerous of his offences have involved acts of violence and that he has shown disregard for the law not only in his breaches of AVOs and bond conditions. Furthermore he has committed offences when on bail and when given the opportunity of an alternative pathway through the Drug Court, whose programmes he did not complete. Finally, in this regard, Mr Tala has a substantial record of non-compliance with requirements and the committing of offences while both in prison and in immigration detention.
The Respondent concedes that it would be in the interest of his minor daughter were he to be allowed to remain in Australia but that there are also community expectations to be considered and in that respect the community would not believe that Mr Tala had earned the privilege of being allowed to remain.
The Respondent urges upon the Tribunal that it should take a holistic view of the totality of Mr Tala’s offences and that it should draw the conclusion that there is a serious risk that he would re-offend and that those re-offences might be of a serious nature and pose some threat to the wellbeing of Australians.
THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[37]
[37] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[38]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[39]
“The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[40]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[41]
[38] Re Drake and Minister for Immigration and Ethnic Affairs(No.2)[1979] 2 ALD 634 at [640].
[39] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].
[40] AFY18 v Minister for Home Affairs (2018) FCA 1566 at [9] per Charlesworth J.
[41] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
It is thus clear that although the original decision-maker has found Mr Tala not to be a person of good character and to have determined that he fails the legislated character test – as indeed they had no capacity to do otherwise – in this instance that decision leads to the consideration of whether or not there is “another reason” why the visa refusal should be set aside. The original decision-maker has determined that no such reason exists, so it is now for the Tribunal to make its own decision in that regard.
It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:
“The weighing of various pieces of evidence is a matter for the Tribunal.”[42]
“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[43]
[42] Minister for Immigration and Citizenship v SZJSS (2010) HCA 48: unanimous decision of the High Court.
[43] Abebe v Commonwealth (1999) 197 CLR 510 at [580] per Gummow and Hayne JJ.
The position of the Tribunal having been established, it is now necessary to consider the basis upon which the Tribunal should make its decision. It is clear, as a matter of fact, that Mr Tala does not pass the character test because of his defined substantial criminal record. The issue is, then, does “another reason” exist for the cancellation decision to be revoked. This in turn requires consideration of the provisions of Ministerial Direction 65.
MINISTERIAL DIRECTION 65 : STATUS AND OBLIGATIONS
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the tribunal into jurisdictional error.
[34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
[35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[44]
[44] Williams v Minister for Immigration and Border Protection 92014) [2014] FCA 674 per Mortimer J.
However this is not entirely a black and white or automatic process.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[45]
[45] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[46]
[46] Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[47]
[47] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Franki J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[48]
[48] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[49]
[49] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[50]
[50] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member PW Taylor SC in Aciek,[51] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[51] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
MINISTERIAL DIRECTION 65 : PRIMARY CONSIDERATIONS

By definition, Mr Tala fails to meet the character test as required under the Act. He has been sentenced to a term of imprisonment in excess of 12 months and so, by statutory definition he fails.
Having addressed that question, the Tribunal returns to the provisions of Ministerial Direction 65. It establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[52]
[52] Part 13.
Protection of the Australian community
Under the terms of the Ministerial Direction, the Tribunal is obliged to consider both the nature and the seriousness of the Applicant’s conduct to date and the risk to the community that he will offend in the future.[53]
[53] Ibid Part 13.1(2).
There is no doubt that Mr Tala’s offences are both serious and numerous. He has been convicted of over 40 criminal charges and a number of these involve acts of violence. There are also breaches of Apprehended Violence Orders. Furthermore there have been several charges of intimidation while in custody.
As noted above the Tribunal had before it some limited material produced under Summons from the NSW Police, the Australian Federal Police and the Department of Corrective Services. In addition, it relies upon the extracted evidence from various sentencing remarks[54] and the fact that custodial sentences of various lengths were imposed.
[54] Section 501 – G Documents at [43-50].
It has been remarked by the Tribunal on a number of occasions that the imposition of sentences is the “last resort” in the hierarchy of sanctions available to the courts and that their imposition should be taken as indicative of the seriousness of the offence in question.[55] This Tribunal sees no reason to depart from that sound principle.
[55] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 per Senior Member Polkaj; Saleh and Minister for Immigration and Border Protection (2017) AATA 367 per Deputy President Kendall.
Mr Tala has also demonstrated that he has little or no appreciation of being granted a “second chance” by the Courts. He has offended while on the Drug Court programme and while on bail.
The Tribunal is thus compelled to conclude that Mr Tala’s offences have been serious and his own claims that they “are not that serious”[56] must be rejected.
[56] Section 501 – G Documents at [102].
It is always difficult to predict whether or not a person will re-offend, although the High Court has given guidance to a certain extent.
In Guo, the High Court opined:
The course of the future is not predictable, but a 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. ….. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require finding as to what occurred in the past because what has occurred in the past is likely to be the most reliable guide to what will happen in the future.[57]
[57] Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567 at 578-579.
Adopting this High Court guidance the Tribunal again must come to the conclusion that Mr Tala’s past history of repeated offences; of ignoring second chances and continuing his defiant conduct (in respect to the law and authority) while both in custodial and immigration detention, he will reoffend in the future.
Questions of risk of future offending are notoriously difficult to assess. The Direction draws attention to matters such as the level of tolerance of the Australian community for any risk of future harm; the nature of that potential harm to the community and its likelihood “taking into account available information and evidence on the risk” of re-offending.[58]
[58] The Direction at 13.1.2
There is significant judicial guidance as to how this Tribunal should approach the assessment of risk.
In Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 (Sabharwal) there was considerable discussion about the way in which the Minister had assessed the “risk”’ of the applicant reoffending by linking it to consideration of the applicant’s past conduct especially in relation to a further link between that offending and the consumption of alcohol. Kerr J stated:
“That “limb” of the character test arguably involved some subjective element — it required the Minister to be satisfied of the likelihood that a person would engage in criminal conduct.
By contrast, s 501(6)(d)(i) now provides an objective test. The statutory criterion required for the current character test to be engaged is that there is “a risk” that, if the person is allowed to enter or remain in Australia the person would engage in criminal conduct in Australia. The application of that criterion requires an evaluative judgement to be made – but it would be inapt to describe that as a subjective test.”[59]
[59] Sabharwal v Minister For Immigration and Border Protection [2018] FCA 10 at [43]-[44] per Kerr J.
The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration) [2018] AATA 732, this Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:
“As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[60]
[60] Fu (Migration) [2018] AATA 732 per Member Jan Redfern at [30].
The Tribunal notes that the Direction itself directs attention to what it states to be “an unacceptable” risk.[61] Clearly then, government policy recognises that there are some risks that are “acceptable”. Common sense demands no less – there cannot be any entirely risk free situations.
[61] The Direction at 13.1.2 (1).
The Tribunal thus has to assess the Applicant’s personal risk of re-offending.
Unfortunately for the Applicant, the Tribunal cannot find that this risk is at the level of being merely medium to low or even negligible.
In the first instance, Mr Tala has too many convictions involving often gratuitous acts of violence for such a conclusion to be reached. The details of the assault which took place in Bondi in August 2011 contain no element of provocation, excuse, explanation or justification. Tow innocent bystanders were violently assaulted and suffered some physical harm when Mr Tala in a state of intoxication and angered by his exclusion from an hotel assaulted them.[62]
[62] Supplementary Summons Material at [23-27].
Secondly, the Tribunal is obliged under the terms of Section 9.1.1 (1)(c) of the Ministerial Direction to give special weight to the commissioning of offences, especially offences of violence which take place within immigration detention centres. The assault which Mr Tala inflicted upon a fellow detainee (who he says he detested because he was alleged to be a “rapist”) led that person to suffer serious physical injury. Again there appears no provocation or excuse for this assault.[63]
[63] Summons Material at [25-29].
Thirdly Mr Tala has, on more than one occasion breached an AVO. While the Tribunal may accept (with some caution) that the AVOs were not requested by any of Mr Tala’s family but were issued by the Police, they nevertheless were in place and they required compliance. This was not forthcoming.
Fourth, there are a series of traffic offences which demonstrate Mr Tala’s disregard for the law on a continuing basis. There are at least eight serious driving offences which include driving without a license, driving while disqualified, driving with illicit drug present in blood, and stating false name or address. This Tribunal has made it clear on a number of occasions that it takes driving offences seriously and where they are egregious and repeated they count substantially to any individuals’ discredit.[64]
[64] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 at [53].
Fifth, the same general disregard for the law is evident in Mr Tala’s several offences of failing to appear as required by conditions of bail or parole; repeated damage of property, shoplifting, failing to complete incoming passenger cards honestly, resisting officers in the execution of their duties and possession of prohibited drugs.[65]
[65] As detailed in National Police Certificate, Section 501 – G Documents at [25-34].
Fifth, a number of Mr Tala’s offences have been committed while he was on bail or while he was under the protective supervision of the Drug Court. Both of these conditions are designed to give offenders second chances or chances of rehabilitation. Not only did Mr Tala fail to complete the Drug Court programme, he abused its protective coverage by further offending.
Sixth, Mr Tala has a very poor record of compliance with rules, regimes and orders while in various forms of custody. His record in prison shows repeated offences,[66] including those of intimidation which he states were merely the result of “officers being prepared to write up anything.” His offences there include failing urine tests. Similarly his record in immigration detention reveals possession of contraband and aggressive behaviour towards staff.[67]
[66] Section 501 – G Documents at [172-173].
[67] Ibid at [69–80].
Finally, it appeared in Mr Tala’s oral evidence to the Tribunal and in at least one of his written statements that he just does not accept that so many of his offences were serious. He dismisses them when he writes that they “are not that serious,”[68] when he disputes that common assault charges are nevertheless to be almost disregarded and when he repeatedly makes claims that he “really wasn’t there” in any meaningful sense or that while there was an assault he just “played my part in it’, when he in fact was the aggressor.
[68] Section 501 – G Documents at [102].
There is, in the opinion of the Tribunal a significant risk that Mr Tala will offend again and that given his history of violent offences, the risk to individuals and the Australian community is significant.
Best interests of minor children
In relation to the best interests of minor children the Tribunal must consider the nature of the relationship between Mr Tala and his 9-year old daughter. As noted above, Mr Tala, in all of his representations, speaks of his attachment and commitment to his daughter and the extent to which he wishes to continue to be part of her life. He asserts that he is a role model for her. Given his record of offending and the amount of time that he has spent separated from her by reason of incarceration, the Tribunal does not place very much weight upon this claim, he has hardly been a role model to date.
It does however note that the child’s mother and other supporters of Mr Tala refer to this relationship and to some degree validate Mr Tala’s claims.
On the other hand the Tribunal notes that on at least two occasions Mr Tala has voluntarily applied for repatriation from Australia to New Zealand. Both of these instances were recent and they hardly bespeak of a commitment to his daughter couched in the terms he otherwise urges upon the Tribunal. His stated reason for the withdrawal of the most recent request for removal was predicated upon the illness of the daughter’s mother and makes no reference to the daughter herself – although he may well claim that his concern was for his daughter if her mother was no longer able to care for her. Nevertheless the Tribunal cannot but evidence some degree of scepticism about the depth of this attachment given these two voluntary requests for removal.
Regardless, the Tribunal must, given the uncontested claims of Mr Tala and his supporters, come to the conclusion that it would be in the interests of the minor child were Mr Tala be permitted to remain in Australia.
The expectations of the Australian community:
Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[69]
[69] Ministerial Direction 65 at 13.3.
This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[70] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[70] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[71]
[71] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7].
Similarly Deputy President McCabe has stated:
“The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[72]
[72] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].
In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:
“In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[73]
[73] Ibid at [58].
In Murphy v Minister for Immigration and Border Protection[74], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[74] Murphy v Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[75] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.
[75] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[76] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[76] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [77]since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[77] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
However, as this Tribunal said in Dinkha
“Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned.”[78]
[78] Dinkha and Minister for Home Affairs (Migration) (2018) AATA 3037 at [113].
In Mr Tala’s case the Tribunal is persuaded that the Australian community would be more likely to believe that Mr Tala had forfeited the privilege of Australian residency than that he should be accorded another chance which he has not demonstrated that he has earned.
MINISTERIAL DIRECTION 65: OTHER CONSIDERATIONS
Ministerial Direction 65 goes on to list a series of “other” considerations which must be taken into account by the Tribunal. These are:
oInternational non-refoulement obligations;
oStrength, nature and duration of ties;
oImpact on Australian business interests;
oImpact on victims;
oExtent of impediments if removed.
As Colvin J has made clear, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[79] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.
[79] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].

In this instance, “other” considerations in relation to non-refoulement obligations (vis-a-vis New Zealand); impact on Australian business interests and impact on victims, are not relevant.
Non-refoulement: Despite his passing reference to “gangs” in New Zealand, Mr Tala does not say that he is afraid of these gangs or that they constitute a direct threat to him, rather than he might be tempted to re-enter their criminal milieu. He mentioned a passing association with “street”, not “bikie” gangs when he was a young adolescent in New Zealand. As far as any future is concerned, this is a matter entirely within his own hands. Given the nature of the government, society and community in New Zealand, no matters of non-refoulement arise for consideration.
Strength, nature and duration of ties: The Tribunal accepts that Mr Tala has lived most of his life in Australia. He regards it as his home. All the significant members of his family reside here and have no intention of returning to New Zealand. He has no family or meaningful ties in New Zealand. His daughter, who is accepted as an important part of his life resides with her mother in Australia. During his life in Australia, while not in prison, Mr Tala has been a productive member of the workforce and has obtained a number of qualifications which help enhance his prospect of employment.
There was no dispute on any of these points from the point of view of the Respondent which actually conceded that it “may weigh in favour of the Applicant.”[80] The Tribunal agrees with this assessment.
[80] Respondent’s Statement of Facts, Issues and Contentions at [66].
Impact on Australian business: There are no impacts to consider.
Impact on victims: Again, in the absence of any evidence to the contrary there are no such impacts to consider.
Impediments if removed: Clearly both Mr Tala and his family would suffer were he to be removed to New Zealand. He would lose intimate contact with his family and his daughter. Although he left New Zealand at the age of 12 he is not entirely a stranger to that country in terms of his cultural, linguistic and social skills. As a citizen he would be entitled to the benefits of that country’s welfare and health systems. He is young and fit with proven ability to gain meaningful employment. Communications between Australia and New Zealand are not fraught with any particular difficulties, although there are obvious inconveniences.
Mr Tala has asserted that he would have less chance to seek rehabilitation and support services in New Zealand. However there is little evidence that he has been active in seeking them in Australia and he has passed up some of the opportunities (such as through the Drug Court) which were available to him.
The Tribunal accepts that there would be impediments for Mr Tala if removed from Australia but they are not so burdensome that the Tribunal must give them undue weight. They count marginally in Mr Tala’s favour.
CONSIDERATIONS
The Tribunal is required to undertake a balancing act when it is clear that different considerations, which the Tribunal is legislatively required to consider, pull in different directions. Making this “calculus”[81] is never easy.
[81] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Among “primary considerations” both the protection of the Australian community and that community’s expectations militate against Mr Tala. The best interests of a minor child, in his favour.
Among “other considerations” the only two relevant considerations militate in favour of Mr Tala one (ties to Australia) somewhat more so than the other (impediments if removed).
In the opinion of the Tribunal the strength of the two primary considerations weighing against Mr Tala are significant and carry more weight that the one primary and two secondary considerations counting in his favour.
The Tribunal accepts Mr Tala’s plea that “this is all about my life” and understands his plea for a second chance. The Tribunal is not adamantine in that regard.
At the end of the day the Tribunal is not persuaded that Mr Tala will not offend again or that his future offences would not pose a genuine risk to the Australian community. It does not believe that Mr Tala has a genuine degree of insight into the nature and impact of his violent behaviour or an understanding of what positive steps he needs to undertake to avoid such behaviour in the future. There is still a degree of denial about his responses which does not persuade the Tribunal that it should take the risk in simply ignoring them and potentially allowing him to remain in this community.
The scheme of section 501 of the Act is that the Tribunal must start from the premise that it needs to find that there is genuinely “another reason” for the Minister’s decision to be set aside. It cannot be that there is just “some reason”, the reason has to be compelling and, in this instance, it has to have sufficient weight to overbear any negative considerations arising in terms of the protection of the Australian community or the well-founded and fair-minded expectations of the Australian community.
In Mr Tala’s case the Tribunal cannot so find.
DECISION
The decision under review is affirmed.

I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd].............................................
Associate
Dated: 12 November 2018

Date(s) of hearing: 5 November 2018

Applicant: In person

Solicitors for the Respondent: Mr W Staples, Clayton Utz

[2018] AATA 4207

12 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	5 November 2018
Applicant:	In person
Solicitors for the Respondent:	Mr W Staples, Clayton Utz