Taukolo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Taukolo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1833 (21 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1965
Re:Makaloni Pertram Taukolo
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall
Date:21 June 2021
Place:Sydney

The decision under review is set aside and as a result the Applicant’s visa is not cancelled.
.....................[sgd]...................................................
Emeritus Professor P A Fairall
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – primary considerations – assault – armed robbery – voluntary surrender to police – remorse – protection of the Australian community – expectations of the Australian community – other considerations – links to the Australian community – alcohol abuse disorder – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Summary Offences Act 1988 (NSW)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall
21 June 2021
INTRODUCTION

The Applicant is a 24-year-old New Zealand citizen. He arrived in Australia as a 16-year-old with his sister and her family in January 2013[1] to ‘start fresh, start another life’.[2] They lived together in Sydney and were later joined by their mother and father. He has therefore lived in Australia for about one third of his life.
[1] G19, 142. 3
[2] Transcript, 2 June 2021, at 20.
On 18 March 2020, he was sentenced for assault and armed robbery in the District Court of New South Wales to three years imprisonment, commencing on 14 January 2019 (when he surrendered to police) and expiring on 13 January 2022.[3] The judge set a non-parole period of 18 months, expiring on 13 July 2020.
[3] The reference in the sentencing judgment at G6, 54 appears to be in error.
On 10 July 2020, his visa was mandatorily cancelled under the Migration Act 1958 (Cth) (the Migration Act).[4] The ground of cancellation is that he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.[5]
[4] Migration Act, paragraph 501(3A)(a)(i).
[5] Migration Act, paragraph 501(7)(c).
The Applicant’s current visa was issued on 7 January 2018. It is a Special Category (Class TY) (subclass 444) visa granted as a matter of course to New Zealand citizens upon arrival. Because of his visa cancellation, his current status is that of an unlawful non-citizen, and such a person must be detained for the purposes of removal from Australia. On 13 July 2020 he was transferred to Villawood Immigration Detention Centre (VIDC) for the purpose of removal to New Zealand.
When his visa was cancelled, the Applicant received the standard invitation to apply to the Minister to revoke the mandatory cancellation. Under the Migration Act, a mandatory cancellation may be revoked if, even though a person fails the character test, there is ‘another reason why the original decision should be revoked’.[6] On 30 July 2020, the Applicant made such a request, and on 30 March 2021, a delegate of the Minister decided not to revoke the mandatory cancellation (the decision under review).
[6] Migration Act, paragraph 501CA(4)(ii).
On 1 April 2021, the Applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision not to revoke the mandatory cancellation.
In performing this function, the Tribunal is required to consider the matter de novo, standing in the shoes of the original decision-maker.
The application was heard by videoconference on 2 and 3 June 2021, in accordance with COVID protocols.
For the reasons outlined below, I have decided to set aside the decision under review, and therefore his visa is reinstated.
THE DISCRETION UNDER SUBSECTION 501CA(4)
In exercising the discretion under subsection 501CA(4) of the Migration Act, the Tribunal is bound by subsection 499(2A) to comply with Direction No. 90 (the Direction), the purpose of which is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.
Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-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.
(3) The 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.
(4) Australia 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-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 8.4(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. [emphasis added]
Part 2 of the Direction provides guidance in relation to exercising the discretion. Under paragraph 6, four primary considerations (paragraph 8) and four ‘other’ considerations (paragraph 9), must be taken into account ‘where relevant to the decision’.
Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the strength of ties to Australia, and the extent of impediments if removed.
The Direction contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[7]
[7] FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Direction also refers to a myriad of subsidiary issues relevant to each of the specified considerations. I have regard to each of these factors referred to in the Direction.
The Direction specifies that certain types of conduct which raise serious character concerns must be regarded as serious: see paragraph 8.4(2).
Paragraph 5.2 refers explicitly to family violence and certain other conduct, including, relevantly, ‘crimes against government representatives or officials due to the position they hold, or in the performance of their duties’: paragraph 8.4(2)(a)-(f). I note that in the present case, the Minister’s representative argued that the offences involving obstruction or intimidation of members of the police force (incidents two and three below) fell into the serious category simply on the basis that there were police officers involved.
Paragraph 5.2(5) suggests that ‘in some circumstances’, strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation decision.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
The first primary consideration is the protection of the Australian community.
I note paragraph 8.1(1), which provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
I also note paragraph 8.1(2) which provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
With these directions in mind, I propose to consider the Applicant’s offending in greater detail.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant has what might be described as a ‘developing’ criminal record. There are three incidents which occurred when he was 19 and 22 years old, when he was grossly intoxicated, and the much more serious premeditated crime in respect of which his visa was mandatorily cancelled. It is apparent that much if not all of his offending is alcohol related,
The first incident – 3 December 2015 – Homebush pub (H59772157)
The Tribunal was provided with evidence of a conviction and sentence recorded on 1 September 2016 for two offences arising from an incident that occurred on 3 December 2015 in the beer garden of the Homebush pub. At the time of the incident the Applicant was 19 years of age.
The NSW Criminal Record reports that on 1 September 2016 the Applicant was convicted in the Burwood Local Court of assault occasioning actual bodily harm.[8] An offence of Affray was taken into account on Form 1.[9]
[8] Applicant’s Tender Bundle, at 15.
[9] As to the Form 1, see Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3, sections 31-35.
The charge sheet records that the Applicant entered a plea of not guilty on 8 January 2016.[10] There are notations on the Charge Sheet made by the Informant, Constable F, ‘24 March 2016’.
[10] Respondent’s Tender Bundle, at 79.
Details of the offending are contained in the Facts Sheet prepared by the NSW Police and produced under summons. Unfortunately, the first page of the relevant entry is missing from the Facts Sheet, which therefore provides only a partial account of the events. Specifically, it is not clear what precipitated the outbreak of violence. Nevertheless, the Applicant’s counsel did not object to the admission of these incomplete records, and I allowed the Minister’s representative to use them as a basis for cross-examination.
The Facts Sheets indicate that the Applicant was one of three accused involved in a brawl. The Applicant is said to have punched and kicked a patron, and one of the accused is said to have stood watching while holding a mobile phone. No CCTV or other footage of the incident has been provided to the Tribunal. It is also recorded that the victim of the Applicant’s violence required medical treatment including stitches to his ear, and damage to multiple teeth.[11] The three accused were also said to have thrown chairs, tables and drinks around.
[11] Respondent’s Tender Bundle, at 79-82.
The Respondent contends as follows:
On 3 December 2015, the applicant instigated a fight in the beer garden of a venue in Homebush (TB3/80-82). The applicant approached a number of other patrons unknown to him, “yelling that he wanted to fight” and swinging his fist at them “as if to punch them”. When a patron not connected to the applicant physically got between the applicant and another person, the applicant and two co-offenders proceeded to assault the patron, knocking him to the ground and then continuing to hit him. The applicant later approached yet another patron, unconnected to him, and punched him in the head causing him to fall “backwards with force”. The applicant then proceeded to punch and kick the victim while on the floor. The police facts sheet notes that the applicant did this while wearing steelcapped boots and that the attacks appeared to have been unprovoked (TB3/81). The victim was required to attend a hospital where he received stitches to his ear, glue to his forehead and was observed to have “significant damage to multiple teeth” (TB3/82). The applicant was charged and convicted of assault occasioning actual bodily harm and affray and sentenced to a 12 month intensive correction order (G5/36-37). [emphasis added]
The assertion that the Applicant ‘instigated’ the fight is not apparent from the material before the Tribunal. I note that the words ‘Entirely unprovoked’ have been crossed out in the Facts Sheet. The relevant sentence reads: ‘~~Entirely unprovoked~~, the accused approached a number of other males, yelling that he wanted to fight …’ It seems from the adjacent signature that the words were crossed out by the Informant, Constable F. The subsequent statement in the Facts Sheet, that the ‘attacks appear to have been unprovoked’ was left unaltered. I take this to be a tentative expression of opinion. There is nothing to suggest that police were present during the melee.
The Minister’s representative questioned the Applicant about these events. He said he could not remember anything about the night, although he ‘accepted’ the statements contained in the Facts Sheet. He said:
Well I don't exactly know what I done. I was intoxicated. I don't remember.
But you did punch him in the back of the head. That's what you just said?---That’s what's been said on the paper. I was drunk on that night, so.
Do you accept that that's what happened?---Pardon?
Do you accept that that is what happened?---Yes, I accept that that's what happened.
SENIOR MEMBER: Sorry, can I clarify that please, Mr Burke?
MR BURKE: Sure.
SENIOR MEMBER: Mr Taukolo, do you remember hitting Mr F… on that occasion?---No.
Are you accepting that you did hit him as stated in this report?---Yes.
So you're not disputing the report, but you don't remember hitting him. Is that correct?---I don't remember hitting him because I was intoxicated, but I do accept that I did hit him.
Okay, thanks.[12]
[12] Transcript, 2 June 2021, at 45-46.
I note that the Applicant pleaded not guilty to the charge, that he was not interviewed by the police at the time of arrest due to his level of intoxication, and that the records are incomplete.
Nevertheless, I am satisfied that the Applicant was involved in the affray and that he caused actual bodily harm to some person. This much is apparent from the finding of guilt and the sentence of imprisonment imposed, to be served by way of intensive corrections order (ICO).
I resist the temptation to make findings as to whether the violence was provoked or unprovoked, or which blows caused particular injuries. The salient fact is that the Applicant was sentenced to a term of 12 months imprisonment to be served by way of ICO, a sentencing option provided for under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides:
7 Intensive correction orders
(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
(2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.
(3) This section does not apply to an offender who is under the age of 18 years.
(4) This section is subject to the provisions of Part 5.
The ICO included orders for counselling in relation to the use of alcohol, anger management and violence issues. The ICO expired on 31 August 2017.
The Respondent’s representative characterised this sentence, not unreasonably, as a ‘second chance’.[13] I do however note that at this point the Applicant had no prior record and was 19 years old.
[13] Transcript, 2 June 2021, at 49.
The second incident – 1 June 2016 (H61322407)
On 1 September 2016, while he was still 19 years old, the Applicant was convicted in the Burwood Local Court and fined $400 for using offensive language in or near a public school on 1 June 2016. He was also convicted for resisting or hindering a police officer in the execution of duty, and was sentenced to a 12 month good behaviour bond.
There is scant information before the Tribunal pertaining to this incident. The Applicant was not cross-examined about it. He said that he had no relevant recollection due to his heavy intoxication.
The third incident – 1 November 2018 (H69231126)
Two years later the Applicant was involved in another drunken encounter with the police. The circumstances are set out in the NSW Police Facts Sheet.[14]
[14] Applicant’s Tender Bundle, at 37.
In the early hours of 1 November 2018 the police responded to a call in the Bankstown area because an intoxicated person was kicking on doors in the business district. When approached by police he offered to fight and was bouncing around on his feet. Police used two shots of capsicum spray to subdue him. He was put on the ground and later taken to hospital for capsicum decontamination.
The Applicant was charged with a summary offence (offensive behaviour) under subsection 4(1) of the Summary Offences Act 1988 (NSW), and two offences under the Crimes Act 1900 (NSW) (the Crimes Act): resist officer (section 58); and intimidate officer (subsection 60(1)).
On 22 November 2018, he was sentenced for each offence to nine months community service running from 22 November 2018 until 21 August 2019. He was also required to attend alcohol abuse programs.
The fourth incident – 11 January 2019 – 22 years of age (H70005118)
In the early hours of 11 January 2019, the Applicant and an accomplice smashed their way into Sydney’s Belfield Hotel through a locked door. They wore masks and balaclavas. His co-offender was armed with an imitation firearm, which he used to smash the glass in the door. The Applicant was cut climbing through the glass. The following account is taken from the sentencing remarks of the District Court judge who sentenced the offenders, as well as the evidence of the Applicant.[15]
[15] G6, 39-42.
Two senior citizens were playing a game of late-night pool. One of them went to warn other patrons that a robbery was in progress and the Applicant snatched a pool cue from his hand and hit him twice on the lower leg. The manager arrived with a junior staff member. The co-offender thrust the imitation firearm into the manager’s chest and told him to lie on the floor. The Applicant stood over the manager and ordered him not to move. He placed the pool cue across his chest and restrained him from behind pulling the cue close to his throat.[16]
[16] Transcript, 2 June 2021, at 52-53.

They were unable to gain access to the safe and stole $1,200 from the bar till. The co-offender noticed that the Assistant had blood on his shirt and told him to remove the shirt and give it to him. The Applicant asked the Manager for his jacket. They fled with the money, a blood-spattered shirt belonging to the junior staff member and a jacket belonging to the manager. The whole incident lasted about 5 minutes.
A few days later, the Applicant told his father what he had done. His father, a pastor in the local community church, encouraged him to surrender. On 14 January 2019 his father drove him to the police station. The Applicant made a voluntary confession and cooperated fully with the police, except that he declined to identify his accomplice, who remains at large.
On 14 August 2019 the Applicant was convicted in the Burwood Local Court of robbery armed with a dangerous weapon (imitation firearm) contrary to subsection 97(2) of the (Crimes Act), an offence attracting a maximum penalty of 25 years; and common assault, contrary to section 61 of the Crimes Act. A separate offence of armed robbery of the jacket was taken into account on the Form 1. He was committed for sentence in the District Court of NSW.
On 18 March 2020, in the Parramatta District Court, Judge Hanley SC sentenced the Applicant to an aggregate sentence of three years imprisonment for the two offences of armed robbery and assault, with a non-parole period of 18 months. The judge gave a substantial sentencing discount; 15% (8 months) for cooperating with the police; and a further 25% (12 months) for his early plea of guilty.[17]
[17] G6, 53.
Applying paragraph 8 of the Direction
Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker should have regard.
I note specifically paragraph 8.1.1(b) which refers to the types of crimes or conduct considered by the Australian Government and community to be serious, and that this includes crimes committed against government representatives or officials due to the position they hold or in the performance of their duties. I note that the second and third incidents above involved offences against the police.
I note that the offending occurred in December 2015, June 2016, November 2018 and January 2019; in other words, six months, two years, and then two months separate the various incidents. This is somewhat sporadic and does not quite attain the measure of ‘regular’ offending.
The armed robbery triggered the mandatory cancellation and his transfer to immigration detention. It is certainly a much more serious offence, but I do not think that it demonstrates a trend of increasing seriousness.
I do not think that the offending record displays a pattern of violent offending or a proclivity towards violence. The second and third incidents did not involve serious violence. There are however two incidents that display a high degree of violence, the affray and the robbery, but they are many years apart, in 2015 and 2019.
The violence visited on the victims of the robbery was by no means trivial. The Applicant is a tall man and his behaviour would have been terrifying. He might well have done very serious harm to the guests or staff. It is some consolation that the actual degree of harm inflicted was towards the lower end of the scale.
The sentencing judge found that the offending fell within the midrange of objective seriousness, and towards the lower end of that range, noting that the victims of the offence were vulnerable and that the experience would have been terrifying for them.[18] The Applicant’s treatment of the elderly patrons was cowardly and despicable.
[18] G6, 44.
The Respondent’s representative provided some research papers detailing the potential for serious mental trauma and post-traumatic stress disorder often experienced by victims of such violence. However, there is no evidence before the Tribunal as to any particular psychological harm suffered by any of the victims. It appears that the younger patron and the younger staff member had some bruising but were otherwise unhurt.
The risk to the Australian community
I turn to consider paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
8.1.2. The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
(1) 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.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). [emphasis added]
Specifically, I note the Government’s view articulated in paragraph 8.1.2(1) concerning the inverse relationship between the community's tolerance for any risk of future harm and the seriousness of the potential harm.
The Tribunal is directed to consider explicitly both the nature of the harm (8.1.2(2)(a)) and the risk of that harm occurring (8.1.2(2)(b)). In assessing the risk relevant information and evidence regarding risk should be considered.
The nature of harm – paragraph 8.1.2(2)(a)
The nature of the harm is evident from the description of the four incidents described above. The harm is that of physical violence. There is some deficiency in the quality of the evidence relating to the first two incidents, but the nature of his participation in the robbery is very clear. A robbery is not only disruptive of commerce but poses a significant threat of personal injury. Further offending of this nature would be intolerable.
The assessment of risk – paragraph 8.1.2(2)(b)
The assessment of the risk of future offending is closely related to the issue of remorse and rehabilitation. The presence of genuine remorse is likely to significantly increase the prospect of meaningful rehabilitation.
The sentencing judge was satisfied that the offender (the Applicant) was genuinely remorseful and had taken full responsibility for his behaviour.[19] His Honour regarded the Applicant’s confession to his father and his subsequent voluntary surrender to the police as critical elements in sentencing. His Honour said: ‘His confession was timely and underlines the significance of his assistance to the police’.[20]
[19] G6, 45.
[20] G6,t 45.
The police were unaware of the identity of the offender and at the time of his confession were not in possession of any DNA material that may have allowed him to be identified. His assistance was timely and substantial, and led to the detection of an offence that Police may not have otherwise solved, at least in relation to his participation. The sentencing judge stated:
I am satisfied he has reasonably good prospects of rehabilitation, he is certainly motivated. The fact he surrendered himself to police and confessed indicates he understands this type of behaviour is abhorrent to the community and one which he should be appropriately shameful. It also indicates his statement he was glad to admit to his offending indicates he has underlying prosocial values no doubt stemming from the values provided to him by his parents and church. [emphasis added]
His Honour noted that he had not sought any other benefit other than that it be taken into account as a matter of sentence.
I do not think that the evidence supports the contention put by the Minister’s representative that the Applicant gave himself up because he knew he would be caught in the fullness of time. The sentencing judge was clearly satisfied as to the genuineness of his remorse.
The role of alcohol in his offending
In assessing the risk to the Australian community, it is important to reflect on the role of alcohol in his offending. His abuse of alcohol has been the blight of his life. He started drinking at the age of 15 and at the time of the first offences in 2015 and 2016, his alcohol use had become chronic.[21] He told the Tribunal he consumed a few slabs of beer a week and would often drink until he lost consciousness. He also used Kava on occasion and methamphetamine, although he does not appear to be addicted to either. He is especially vulnerable to alcohol. He has been diagnosed as suffering from ‘alcohol abuse disorder’.[22]
[21] Applicant’s Tender Bundle, at 34.
[22] Transcript, 2 June 2021, at 42; Respondent’s Tender Bundle, at 272.
I note the psychiatric report prepared by Dr John Roberts, Consultant and Forensic Psychiatrist, MBBS, FRANZCP dated 28 August 2016.[23] At that time he was smoking 25 cigarettes a day and drinking on weekends until collapse. Dr Roberts diagnosed him as suffering from substance use disorder.[24] He was suffering from a mental illness as defined in DSM 5, namely a substance use disorder for which treatment was available.
[23] Applicant’s Tender Bundle, at 28; Respondent’s Tender Bundle, at 111.
[24] Applicant’s Tender Bundle, at 33.
He reduced his alcohol intake after consulting with Dr Roberts, but on his return he had apparently substituted Kava,[25] and was cautioned by Dr Roberts about the dangers of doing so.
[25] Applicant’s Tender Bundle, at 35.
The question is not whether a state of drunkenness mitigates or aggravates his moral blameworthiness for the offending, but the significance of his past alcohol addiction to his future conduct. It is common knowledge that alcohol is used as a salve during periods of stress. At least one drunken incident occurred during the breakdown of a close personal relationship.
One troubling aspect is that the Applicant said that he drank alcohol before the robbery, in order to steel himself or give him ‘courage’ for the offending.[26] In this respect the robbery is quite different from the previous offending, where it appears that the offences were situational and occurred entirely without premeditation. The use of intoxicants as a means of reducing inhibition for the purpose of engaging in criminal behaviour is a serious matter.
[26] Transcript, 2 June 2021, at 59; see Respondent’s Tender Bundle, at 158.
I also note the Assessment Report prepared by Corrections.[27] It was noted that at that time he had virtually no criminal record. His risk of reoffending was considered to be low, and his criminogenic needs were assessed as alcohol/violence. He was assessed as suitable for an intensive corrections order.
[27] Applicant’s Tender Bundle, at 24.
Despite his drinking and occasional drug use, he held down a job in construction for three years prior to his loss of liberty in early 2019.[28] He provided financial support for his extended family, parents and siblings. He earned respect from those he worked with. He formed and lost intimate relationships.
[28] G17, 128.
I also note by reference to paragraph 8.1.2(2)(a) that the nature of the harm to individuals and the community should the Applicant relapse to alcohol fuelled fighting or misadventure is the harm of physical violence, together with the associated law enforcement, criminal justice and health care costs associated with such behaviour.
Given his past vulnerability to alcohol, one cannot discount the possibility that he will relapse. It is no doubt helpful that he has spent the last three years in a state of enforced sobriety.
He said that he had participated in a few sessions with Alcoholics Anonymous, as required by the terms of the ICO imposed in 2016. He said that he continued to drink. In 2020 he attended some anger management programs in prison.[29]
[29] See Transcript, 2 June 2021, at 49-50.
He told the Tribunal that he did not wish to go back to drinking because he likes how he now feels.[30]
[30] See Transcript, 2 June 2021, at 61.
I assess the risk of future antisocial behaviour as moderately low. I have factored in the deterrent effect of the long period of incarceration experienced by the Applicant, and to the other pro-social aspects of his life, including the steadying influence of his parents, and to his rekindled relationship with his fiancé.
Taking account of the principles contained in the Direction, and specifically those articulated in paragraph 8.1.1(b), I am satisfied that PC1 weighs against the Applicant, but not as heavily as at first blush might appear.
Taking into account both the nature of the harm and the risk of such harm occurring, I find that PC1 weighs against revocation of the mandatory cancellation, but only moderately.
Family violence: PC2
This consideration does not apply.
Best interests of minor children in Australia affected by the decision: PC3
I note paragraph 8.3 of the Direction, which states:
8.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This 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.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
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. [emphasis added]
His fiancé’s three children
The Tribunal was exposed to a lengthy account of the Applicant’s relationship with his fiancé and her three children. It is necessary to consider this very private matter because the Applicant identified her three children, a nine-year-old son, and twins aged three, as minor children affected by the decision to remove him from Australia. The Applicant’s counsel argued that these children would be adversely affected if he were removed because it was important for them to have a father figure in their lives.
I have two difficulties with this assessment: first, I do not think there is a solid basis upon which to predict the future course of the relationship between the Applicant and his fiancé. Second, even if the aspirational relationship does last, it is by no means clear that it is in the best interests of the three children that he should become their de facto father.
As to the first matter, the history of their relationship is complicated. The relationship commenced in 2016, but they had a ‘break’ in 2017, and resumed their involvement a month before he was taken into custody. They both had significant partners during this relationship break. She fell pregnant and bore twins. They have never lived together.
Both the Applicant and his fiancé gave evidence that the relationship resumed in January 2019 and that they plan to marry in the future. She provided a statutory declaration in which she expressed the hope that they would get married. However, she told the Tribunal that she would not go to New Zealand if he was removed.
There are some items of evidence that bear upon the stability of this relationship. For example, the Respondent’s representative noted that in the Revocation Request Form signed in July 2020, the Applicant did not refer to his fiancé at all. In fact, he ticked a box to say that he was single.[31] The Applicant said that when he filled out the form he thought he was going to be deported. He thought his relationship with his fiancé was over. He did not appreciate the significant of having a relationship with her and her children in relation to these proceedings.
[31] G7, 67.
Moreover, there is no record of any visits by his fiancé to the Applicant in prison. He said that she had been unable to visit him given her parenting responsibilities, including the fact that her twins were born prematurely.
The Applicant also had a significant relationship with another woman during the relationship ‘break’. She visited him in prison during 2019 on a fairly frequent basis, and was entered as ‘De Facto’ in the Prison Visitor log. The Applicant said that although he had been in a relationship with her before going to prison, at the time of her visits she was just a friend. She was not his partner, and he had no control over what was entered in the log.
In his statement dated 23 November 2020, the Applicant stated:[32]
Communications with A… and children while in prison and immigration detention
5. In the period I was in jail, I phoned and spoke with A… whenever I could. But it was hard to get access to a phone. And when I got access to a phone, calls were limited to six minutes.
6. At Villawood Detention Centre I have a phone. I phone A… every day and do video calls. We speak many times during the day.
7. In the evenings I spend hours on the phone speaking to the kids. I put the kids to sleep over the phone. Later in the evening A… and I fall asleep speaking to each other on the phone.
8. A… visits me every week in Villawood. The children also visit me. The twins have visited me once and the eldest has come a few times.
[32] Applicant’s Tender Bundle, at 2.
The visitor logs relating to his time at the VIDC are not before the Tribunal, although I note that there are photographs in the materials which apparently relate to such visits.
The Applicant’s representative contended that it is desirable for children to have a ‘father figure’ in their lives. This will depend entirely on the measure of the father.
Regrettably, the Applicant has a long history of alcohol abuse. He is capable of irrational and even violent behaviour when intoxicated. While I do not assess the probability of relapse as high, it cannot be discounted, and the children would be directly exposed to the risk of any relapse, especially if living in the same dwelling.

I also note that the children’s grandmother and aunt assist his fiancé with the children and to some extent fulfil a parental role.
I find that PC3 weighs neither for nor against revocation of the mandatory cancellation decision. It is a neutral consideration.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
8.4 Expectations of the Australian Community
(1) 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.
(2) In addition, 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 is 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 through conduct, in Australia or elsewhere, of the following kind:
…
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(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. [emphasis added]
A literal reading of paragraph 8.4 of the Direction suggests that if the offending falls into one of the categories and is therefore taken to raise ‘serious character concerns through conduct’, then the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
The Respondent contends, consistently with the Direction, that any offences committed against police should be regarded as very serious. Paragraph 8.4.2(d) of the Direction requires these incidents in the Applicant’s criminal record to be treated as serious.
However, the classification of a particular category of offence as serious or very serious does not absolve the Tribunal from the responsibility to determine for itself the weight to be assigned in the specific circumstances of the case.
I note that in relation to the relevant offences committed against police, there are no sentencing remarks and the Applicant received a non-custodial sentence for each of them.
The last incident in his criminal record is by far the most serious. The commission of an armed robbery in the course of which a person is injured, even moderately, is a very serious matter. The Applicant showed a readiness to use violence and did so. This cannot be regarded as other than very serious. The sentencing judge placed the objective seriousness towards the lower end of the middle of the range. That may be so, but for present purposes such an offence, for which a sentence of three years imprisonment was imposed, cannot be regarded as other than very serious.
In relation to PC4 (the expectations of the Australian community) it is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against an applicant in any particular case varies according to the seriousness of their offending.[33]
[33] FYBR v Minister for Home Affairs [2019] FCAFC 185.
In the particular circumstances of this case, PC4 weighs firmly against the Applicant.
OTHER CONSIDERATIONS
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration has no application.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-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.
The Applicant is young, physically fit and, apart from his vulnerability to chronic drinking, is in good health. There is no relevant language or cultural barrier.
I recognise that he will encounter challenges in relocating back to New Zealand. The loss of a potential relationship with his fiancé will be a major emotional blow. However, as a counterbalance, I note that he has important family members in New Zealand. In 2013, he came to Australia with his sister. In 2020, she went home with her new husband and four of her children. He told the Tribunal how he helped his sister with the children especially after her husband (their father) passed away.[34] This is a very significant relationship and there is nothing to suggest that she would be unwilling to provide at the very least moral support in re-establishing himself in New Zealand.
[34] G8, 80.Transcript, 3 June 2021, at 142.
I find that this consideration weighs only lightly in favour of revocation of the mandatory cancellation.
Impact on victims: OC3
The Minister’s representative tendered various reports relating to the dangers of physical violence, especially blows to the head, and the long-term effect upon victims of armed robberies. I note this evidence. I note that there is no evidence other than that contained in the police reports and the judge’s sentencing comment as to the impact of the specific victims involved in any of his offences, and I find that this consideration is neutral.
Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia: OC4.1
Links to Paragraph 9.4.1 of the Direction states:
9.4.1. The strength, nature and duration of ties to Australia
(1) Decision-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.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has been in immigration detention since July 2020, during which time he has not requested voluntary removal to New Zealand. The evidence presented to the Tribunal shows that he has extensive family ties in Australia, an employment opportunity, and an important personal relationship with his fiancé.
The Applicant’s mother, father and brother live in Australia, and he has a close relationship with them. The mother and father signed a letter in support of their son and his father gave evidence to the Tribunal.
In his Personal Circumstances Form, the Applicant stated that he had 10 aunts or uncles, 13 nieces or nephews and 10 cousins.[35] As noted above, four of his nephews have now returned to New Zealand with his sister.
[35] G7, 72.
I should note that the Applicant has a solid employment record in Australia. He worked for Post Tension Company (PTC) from 2014 to 2017 in a specialised role in the construction industry and was well regarded. Ms Suzy Saab, general manager, PTC, also provided a statement dated 20 July 2020. She stated that the Applicant was always ‘punctual, hardworking and reliable’. She stated that the company would always offer him employment whenever he was willing to return.[36]
[36] G17, 128..
Mr Taniela Uepi gave evidence to say that he was a friend of the Applicant’s father and that there was a job waiting for him. The Applicant indicated in his evidence that he would accept any such job offer.
I have described the relationship with his fiancé above. I accept that he has a genuine relationship with her and her children.
I am satisfied that he has a genuine relationship with his fiancé’s nine-year-old son. I also note an emerging relationship with her two youngest children, the twins, but they are presently only three years old.
The Respondent’s representative accepted that the Applicant’s removal would have an emotional impact on his parents, his younger brother, and his two adult nephews.[37]
[37] Transcript, 3 June 2021, at 144.
There is no doubt that the impact upon his family members of his removal from Australia will be serious and may force some of them to consider returning to New Zealand. I note the evidence from his fiancé that in the event that the Applicant was removed that she would not relocate to New Zealand. She has support systems in Australia that would not be present in a foreign country. It is unlikely that their relationship could survive under such circumstances.
I also note that the financial impact upon some family members may be significant. It is doubtful whether the Applicant will be able to contribute as much as he did in the past to his parent’s income, taking into account his need to establish himself in New Zealand, as well as the exchange rate. It appears that a heavy financial burden fell upon the Applicant during those years that he was working, and the loss of this income will no doubt be sorely missed.
I find that that, despite his sister’s return to New Zealand, OC4.1 weighs heavily in favour of revocation of the mandatory cancellation.
(ii) Impact on Australian business interests: OC4.2
The Applicant gave evidence that his work in the construction industry had to do with the laying of cables within concrete structures, work he described as specialised and not plentiful or even relevant in New Zealand. However, in terms of the requirements of the Direction, I find that there is no evidence of any impact on Australian business interests.
THE BALANCING EXERCISE
My conclusion in weighing the primary and other considerations is as follows:
·Two of the primary considerations (PC1 and PC4) weigh against revocation of the mandatory cancellation decision. PC1 weighs moderately and PC4 weighs heavily against revocation;
·The best interests of minor children in Australia affected by the decision to remove (PC3) is neutral;
·Family violence (PC2) has no relevance.
In relation to the ‘other’ considerations, I find as follows:
·Non-refoulement (OC1) is not relevant;
·Impediment to resettlement (OC2) weighs slightly in favour of revocation;
·victim impact (OC3) is neutral;
·Links to the Australian community (OC4.1) weighs heavily in favour of revocation.
PC4 is countered by OC4.1, and PC1 is finely balance against OC2. It is a fine balance and not decisive. I do not think this case should be determined by reference to the principle that ‘generally’ primary considerations should outweigh other considerations, because there are two overarching factors that stand out: first, his alcohol addiction, and secondly, the question of parental influence.
I have been heavily influenced by the sentencing comments of Judge Hanley SC, who saw the Applicant’s prospects of rehabilitation as good.[38] Apart from one minor incident in detention, there is no evidence of any disruptive behaviour in prison or detention. There is no doubt that if he cannot control his alcoholism his future will be brutish and short. My assessment is that his experience in prison and detention over the past three years will have a moderating influence.
[38] G6, 51.
I also note the admirable conduct of his father in encouraging him to surrender to the police. The Applicant confessed to his father and expressed shame and they went together to the police station. This would have been difficult for any parent, although it was certainly the right thing to do. Both father and son displayed moral courage. The practical importance of such remorse followed by active steps for redemption should not be underestimated. Were such behaviour more prevalent, the caseload for criminal investigators would be greatly reduced.
The Applicant’s surrender was driven by an overwhelming sense of guilt, remorse and shame. Shame is a powerful motivator for change. This was not a case where he was destined to be caught in any event. He said that he was happy to be punished for his behaviour.
The prosocial and beneficial character of his relationship with his father and mother should be accorded appropriate recognition. It forms a critical link with the Australian community.
In my view, the credit he received in the criminal sphere should not be overlooked in these administrative proceedings. His voluntary surrender should be regarded as a very material consideration, especially in relation to the assessment of remorse and the risk of future harm.
In terms of the Direction, it is perhaps unimportant whether this factor is treated as relevant to OC4.1 (the strength, nature and duration of ties to Australia), or whether it is treated as a consideration in its own right, a so-called ‘other consideration’. In my view, his behaviour in taking full responsibility for his wrongdoing by surrendering to the police within days of committing a serious crime marks this as a ‘second chance’ kind of case. I have therefore decided to revoke the mandatory cancellation decision.
DECISION
The decision under review is set aside and as a result the Applicant’s visa is not cancelled.

I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall

...........................[sgd].............................................
Associate
Dated: 21 June 2021

Dates of hearing: 2 and 3 June 2021

Counsel for the Applicant: Mr B Zipser, 5 Selborne Chambers

Solicitors for the Applicant: Ms M Mamarot, SouthWest Migration & Legal Services

Solicitors for the Respondent: Mr C Burke, Sparke Helmore

[2021] AATA 1833

21 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Jurisdiction

Dates of hearing:	2 and 3 June 2021
Counsel for the Applicant:	Mr B Zipser, 5 Selborne Chambers
Solicitors for the Applicant:	Ms M Mamarot, SouthWest Migration & Legal Services
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore