Toelau Hohua and Minister for Immigration and Border Protection (Migration)

[2016] AATA 486

Toelau Hohua and Minister for Immigration and Border Protection (Migration) [2016] AATA 486 (12 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6337
Re	Lester Toelau Hohua
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	12 July 2016
Place	Perth

The Tribunal affirms the decision under review.

.............[Sgd]...........................................................

Senior Member CR Walsh

CATCHWORDS

IMMIGRATION – decision to not revoke a mandatory cancellation of Applicant’s Class TY Subclass 444 Special Category (Temporary) visa – Applicant not of “good character” – Applicant has a “substantial criminal record” – Applicant sentenced to a term of imprisonment of 12 months or more – whether there is any other reason why mandatory visa cancellation decision should be revoked –  decision under review affirmed

LEGISLATION

Migration Act 1958 – s 499(1) – s 501(6)(a) – s 501(7)(c) - s 501(3A) – s 501CA(3) – s 501CA(4) – s 501CA(4)(b)(i)

CASES

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673

Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 102 ALR 19

SECONDARY MATERIALS

Direction No 65, titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”

REASONS FOR DECISION

Senior Member CR Walsh

12 July 2016

INTRODUCTION

1. Mr Toelau Hohua seeks a review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister), dated 26 November 2015, not to exercise his discretion in s 501CA(4) of the Migration Act 1958 (Migration Act) to revoke a mandatory cancellation of Mr Toelau Hohua’s “Class TY Subclass 444 Special Category (Temporary)” visa because he was not satisfied that Mr Toelau Hohua passes the character test (in s 501 of the Migration Act) or that there is any other reason why the mandatory visa cancellation decision should be revoked

   FACTUAL & PROCEDURAL BACKGROUND

2. Mr Toelau Hohua is a 31 year old citizen of New Zealand.

3. Mr Toelau Hohua arrived in Australia permanently on 27 May 2006 as the holder of a Subclass 444 visa, having visited Australia several times prior to this, commencing in 1995.

4. On 13 February 2015, Mr Toelau Hohua’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Act (Cancellation Decision). This was a mandatory cancellation under s 501(6)(a) and s 501(7)(c) of the Act as Mr Toelau Hohua had been sentenced to a term of imprisonment of 12 months of more and was serving a sentence of imprisonment at Port Phillip Prison in Victoria: refer to paragraph 10 below. The Cancellation Decision states:

   Based on the evidence before the Department of Immigration and Border Protection, the decision-maker is satisfied that you do not pass the character test on the following ground/grounds:

   S501(6)(a) of the Migration Act the person has a substantial criminal record (as defined by s501(7) of the Migration Act). Under s501(7)(c) of the Migration Act the person has been sentenced to a term of imprisonment of 12 months or more. On 11 February 2014 you were convicted of Recklessly Cause Serious Injury and sentenced to 20 months imprisonment.

   ………..

   Opportunity to seek revocation of the cancellation decision

   While your visa has been cancelled and you no longer hold a visa, you have an opportunity to request that the decision (the original decision) to cancel your visa be revoked.

   S501CA(4) of the Migration Act allows you to make representations about the possible revocation of the original decision on the grounds that:

   ·you pass the character test (as defined by s501 of the Migration Act) or

   ·there is another reason why the original decision should be revoked.

5. On 20 February 2015, Mr Toelau Hohua was released from prison on parole and was taken into immigration detention at Yongah Hill Immigration Detention Centre in Northam, Western Australia.

6. On 27 February 2015, Mr Toelau Hohua made representations, pursuant to s 501CA(4)(a) of the Migration Act, seeking revocation of the Cancellation Decision. Mr Toelau Hohua’s stated “Reasons for Revocation” are as follows:

   I would like to remain here in Australia because all my family live here in Melbourne.  I have been here for nine years and have always worked.  Only four months ago I buried my grandmother here in Melbourne.  My partner and I are trying to start a family of our own through the course of I.V.F.  I love to live here in Australia and it is a Dream of mine to raise my family with the best opportunity’s (sic.) this country offers.  As a young kid, I was sexually abused and confronted with situations I had no control of.  I play rugby league and have always contributed to the community.  I will have all necessary paperwork provided at another date.

7. In response to the question “Do you have any concerns or fears about what would happen to you on your return to your country of citizenship?”, Mr Toelau Hohua ticked “Yes” and stated:

   I fear for my safety because only recently I have brought to surface the sexual and mental abuse I went through when I was young.  If returned, I am concerned about my future because I will have no support network due to the fact all my family lives here in Australia.

8. On 19 November 2015, a delegate of the Minister decided not to revoke the Cancellation Decision on the basis that he was not satisfied that Mr Toelau Hohua passes the character test in s 501 of the Migration Act or that there is any other reason why the Cancellation Decision should be revoked (Decision). The Decision states:

   OTHER REASONS

   …………

   11.      In the representations that Mr TOELAU HOHUA submitted, he has articulated the following reasons why the mandatory visa cancellation decision should be revoked:

   Mr TOELAU HOHUA has a strong and close relationship with his two adopted minor sisters.

   Mr TOELAU HOHUA settled in Australia in 2006, since that time he has contributed positively to the Australian community through his strong and excellent employment record.

   Mr TOELAU HOHUA has strong familial ties; he is in a committed relationship with his partner whom he intends to marry in the near future; they have been attempting to conceive a child through IVF and wish to raise their children in Australia. Mr TOELAU HOHUA’s mother and stepfather with whom he has a close and ongoing relationship reside in Australia;

   Mr TOELAU HOHUA had a very close relationship with his grandmother who helped raise him, she recently passed away and is buried in Melbourne.  He further has an extensive extended family who resides in Australia who he has close relationships with.

   Mr TOELAU HOHUA has social ties to Australia through close friendships with members of the Australian community, his involvement in a local rugby league club and he has attended church services at Dandenong Christian Church.  Finally, Mr TOELAU HOHUA’s family have a registered business which he plans in the near future to make into a household name.

9. On 6 December 2015, Mr Toelau Hohua applied to the Tribunal for a review of the Decision.

   CONVICTIONS

10. Mr Toelau Hohua’s “National Police certificate”, dated 24 February 2014, shows that Mr Toelau Hohua has the following Australian criminal history:

Court	Conviction Date	Charge	Result
County Court of Victoria, Melbourne	11 February 2014	Recklessly Cause Serious Injury	Imprisonment 20 months
Brisbane Magistrates Court	2 November 2010	Obstruction Generally To a Licensee Etc. (Hinder/Or Attempt To do So)	Convicted. Fined $150
Waverly Local Court	15 September 2010	Maliciously Inflict Grievous Bodily Harm	(Call up) Imprisonment 4 months. Sentence suspended on good behaviour bond for 4 months
Waverly Local Court	17 August 2010	Common Assault	Imprisonment 6 months. Sentence suspended on good behaviour bond for 6 months
Waverly Local Court	30 June 2010	Excluded Person Re-enter/Attempt To Re-Enter Premises	Fined $650
Waverly Local Court	28 May 2010	Maliciously Inflict Grievous Bodily Harm	(Call up) Community Service Order extended until 30 November 2010
Waverly Local Court	29 July 2009	Drive Whilst Suspended	Convicted. Bond to be of good behaviour for 12 months. Licence Disqualified for 12 months
Special Category Driver Drive with Special Range Prescribed Concentration of Alcohol	Convicted. Fined $400. Licence disqualified for 3 years
Learner Not Accompanied By Driver/Police Officer/Tester	Convicted. Fined $250. Licence Disqualified for 3 months
Learner Driver Not Display “L” Plates As required	Convicted. No penalty imposed
Hornsby Local Court	9 April 2008	Maliciously Inflict Grievous Bodily Harm	(Call up) Community Service Order to perform 250 hours.
Waverly Local Court	4 October 2007	Destroy Or Damage Property	Fined $500. Pay compensation $1,189

1. The following sentencing remarks of Judge Stewart, in relation to Mr Toelau Hohua’s conviction, on 11 February 2014, in the County Court of Victoria for “recklessly cause serious injury” reveal that Mr Toelau Hohua has the following prior criminal history in New Zealand:

   7.You come before me with a prior criminal history which involves four other instances of assault, three of which resulted in your being charged with common assault, the third of that four, you were charged with maliciously inflicting grievous bodily harm.  Those matters span a not inconsiderable period of time between 2004 and 2010.  On 1 October 2004 you were before the North Shore District Court in New Zealand charged with common assault.  You were convicted and fined $200.

   8.Your second court appearance was a couple of years later, or a little over a year later again, at the North Shore District Court in New Zealand, charged with common assault.  You were ordered to perform 150 hours community work.  There was a breach of that order and you were given a final warning the following month, again at the same court.

   ISSUES

2. The relevant issues for determination by the Tribunal are whether there is any reason why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Migration Act, and if so whether the discretion under s 501CA(4) of the Migration Act should be exercised in Mr Toelau Hohua’s favour.

   ANALYSIS

3. Section 501CA of the Migration Act, titled “Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)”, states:

   (4)      The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)       the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

   (i)        Character test

4. The Tribunal must first consider whether it is satisfied that Mr Toelau Hohua passes the “character test” in s 501 of the Migration Act, such that the discretion under s 501 CA(4) of the Migration Act is enlivened pursuant to s 501CA(4)(b)(i) of the Migration Act.

5. Section 501(6) provides that a person does not pass the character test if:

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

6. Section 501(7) of the Migration Act relevantly provides:

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   …

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

7. It is not in dispute that Mr Toelau Hohua has a “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act, as a result of being sentenced to a term of imprisonment in excess of 12 months, and, therefore, he does not pass the “character test” pursuant to s 501(6)(a) of the Migration Act.

   (ii)       Discretion

8. Having determined that Mr Toelau Hohua does not pass the “character test”, the Tribunal must then consider whether there is another reason why the Cancellation Decision should be revoked, such that the discretion under s 501CA(4) of the Act is enlivened pursuant to s 501CA(4)(b)(ii).

9. In light of the matters identified at paragraph 11 of the Decision (refer to paragraph 8 above) it is open to the Tribunal to find that there is a reason to revoke the Cancellation Decision such that the discretion in s 501CA(4) of the Migration Act is enlivened.

10. Consequently, the Tribunal will now consider the correct and preferable exercise of that discretion.

11. On 22 December 2014, the Minister issued “Direction No. 65 - Visa Refusal and Cancellation Under Section 501” (Direction No 65) in accordance with his powers in s 499(1) of the Migration Act.

12. The purpose of Direction No 65 is to guide “decision-makers” (which is defined in Annex B to Direction No 65 to include the Tribunal) performing functions or exercising powers under s 501 of the Migration Act (visa refusal and cancellation) and s 501CA of the Migration Act (mandatory visa cancellation). Decision-makers (including the Tribunal) must comply with Direction No 65: paragraph 6.1(4) of Direction No 65 and s 499(2A) of the Migration Act.

13. Due consideration is to be given to the “General Guidance” and “Principles” set out in paragraph 6 of Direction No 65.

14. Paragraph 6.2(1) of Direction No 65 states:

    6.2      General Guidance

    (1)The Government is committed to protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

15. Paragraph 6.3 of Direction No 65 states:

    6.3Principles

    (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 or to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

    …………

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

16. Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) states:

    7.        How to exercise the discretion

    (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

    (b)must take into account the considerations in Part C, to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

17. Paragraph 8(1) of Direction No 65 states:

    8.        Taking the relevant considerations in account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case.

    ……..

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

18. Part C of Direction No 65 identifies the considerations relevant to deciding whether to revoke mandatory cancellation of a visa under s 501(3A) of the Migration Act: paragraph 5 and paragraph 6.2(3) of Direction No 65.

19. Paragraph 13 in Part C of Direction No 65 sets out the primary considerations that a decision-maker must take into account:

    13.      Primary considerations – revocation requests

    (1) ………….Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

    (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)       The best interests of minor children in Australia;

    (c)       Expectations of the Australian community.

    harm that would be caused if it were to be repeated, may be so serious,

    Protection of the Australia community

20. Paragraph 13.1(1) of Direction No 65 provides that decision-makers considering protection of the Australian community should have regard to the principle in paragraph 6.2(1) of Direction No 65, and states that remaining in Australia is a privilege Australia confers on non-citizens with the expectations set out in paragraph 6.3(1) of Direction No 65.

21. Paragraph 13.1(1) of Direction No 65 then identifies two factors to which consideration should also be given:

    (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. [Emphasis added]

    Nature and seriousness of the conduct

22. Paragraph 13.1.1(1) of Direction No 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct.  Paragraph 13.1.1(1) of Direction No 65 states:

    13.1.1  The nature and seriousness of the conduct

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

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

    ……….

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

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

    (e)The cumulative effect of repeated offending;

    (f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

23. It is well-established that the Tribunal cannot go behind a conviction and examine the facts upon which it is based:  Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 102 ALR 19 at 22. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673, Branson J observed (at [43]) that a conviction and sentence should be treated as strong prima facie evidence of the facts upon which they are necessarily based.

1. In relation to Mr Toelau Hohua’s conviction for “Recklessly Cause Serious Injury” in the County Court of Victoria on 11 February 2014, the sentencing judge, Judge Stuart, described the circumstances of Mr Toelau Hohua’s offending as follows:

   2. Briefly, the circumstances surrounding your offending were that on Saturday,19 May 2012, you met your victim. You were at a mutual friends’ place. You were drinking and became intoxicated. An argument developed between you and your victim and others, and that argument became a loud and verbal one. You were asked to leave and eventually you were driven by your victim to a railway station nearby. Apparently, the victim’s driving was erratic, to say the least, and when you got out at the railway station, you opened the driver’s door and punched him to the head.

   3.Had matters stopped at that, the situation that you find yourself in now would be very different. However you did not stop. You pulled him out of the car and punched him to the face and chest area. The events outside the car were witnessed by two passers-by, one of whom spoke to you in Samoan, unsuccessfully trying to dissuade you from your onslaught. And onslaught it was against your victim. A Dr Robinson happened to be driving past. He describes the events in these terms. He saw a large man standing up punching the male lying on the ground.

   “I drove towards where the assault was happening and pulled up with my car facing the two males. I put my headlights on high beam and started tooting the horn, but this didn’t even cause the male standing over the man on the ground to stop and turn around. It seemed that he was in a rage and oblivious to what was going on around him. I then observed the male who was standing up jump on the chest and stomach of the male lying on the ground. He really jumped in the air to stomp on him. So he wasn’t messing around.”

   4.Police were called and once you completed your attack, Dr Robinson attended to the victim. Not only did you jump and stomp on the victim as described, you kicked him a few times. You took off a shoe and hit him with it a number of times. You took off your shirt, and then walked back to where the victim was lying on the ground, punching him, saying “what’s my name fucker, what’re you going to say to me when you come to work tomorrow?” [Emphasis added]

2. In considering the seriousness of Mr Toelau Hohua’s offending, Judge Stuart stated the following:

   5.This assault occurred in a public area. The injuries to the victim were a closed head injury, blunt head trauma with right frontal subgaleal haematoma (bleeding between the skull and the scalp), a laceration to his upper lip which required surgery, three of his upper teeth were knocked out, there was a minimal displacement fracture of the twelfth rib with some very small pneumothorax (gas been the lung and the chest wall), a laceration to the liver involving segments seven and eight at the bottom right hand corner of the liver, and a bruise to his adrenal gland. This did not require an operation.

   6.You were arrested and placed in a holding cell for several hours until you were sober enough for interview. You sought to shift blame on your victim. This was a cowardly and vicious attack on your victim. It was suggested that your victim had been provocative. If so, that was earlier at the home, not near the railway station. Such provocative behaviours that might have come from the victim are of little moment. Your reaction was grossly out of proportion to anything that the victim said or did during the night. [Emphasis added]

3. Judge Stuart described Mr Toelau Hohua’s criminal history as follows:

   7. You come before me with a prior criminal history which involves four other instances of assault, three of which resulted in your being charged with common assault, the third of that four, you were charged with maliciously inflicting grievous bodily harm. Those matters span a not inconsiderable period of time between 2004 and 2010. On 1 October 2004 you were before the North Shore District Court in New Zealand charged with common assault. You were convicted and fined $200.

   8.Your second court appearance was a couple of years later, or a little over a year later again, at the North Shore District Court in New Zealand, charged with common assault. You were ordered to perform 150 hours community work. There was a breach of that order and you were given a final warning the following month, again at the same court.

   9.The third occasion you came to court in relation to matters of violence, was at the Hornsby Local Court in New South Wales on 9 April 2008, where you were charged with maliciously inflicting grievous bodily harm. You were ordered to serve 250 hours community serve order which was completed. Two years later the matter was finally disposed of on 15 September 2010 in the Waverley Local Court, New South Wales, where the matter was called up and you were sentenced to be imprisoned for four months, wholly suspended on condition you enter into a bond for a period of four months.

   10.The circumstances surrounding that third matter of maliciously inflicting grievous bodily harm, are set out in what became Exhibit 4. According to that record, the facts are as follows:

   “At 8 p.m. on 15 August 2007, the victim, Robert Codling, attended the Great Northern Hotel located on Pacific Highway, Chatswood. The victim attended this location alone, where he proceeded to have a few drinks by the front bar and played some poker machines. Approximately three hours later, the victim went out the front of the hotel in the smoking area. Whilst there, he was having a conversation with the witness Patrick Noble, whom he had only met on this night, and [Mr Toelau Hohua] the accused. The victim and the accused were talking when they then started to have a verbal argument. It is believed that the accused thought the victim was gay and was making advances towards him. The accused did not approve of this and as a result, he punched the victim to the facial area twice. This has caused the victim to fall to the ground, where the accused again punched and kicked the victim to the head whilst he was on the ground. The victim has immediately shown signs of major facial injuries. The witnesses have rushed over the render aid and pull the accused off the victim. The accused has then decamped on foot.”

   11.Those events are strikingly similar to the events that bring you before me. For no good reason, you attacked that victim, by punching him to the ground and then continuing your assault, not only by punching, but by kicking. And in this occasion, by jumping in the air to stomp on him. One would have thought that you would have learnt something of a lesson from those matters. You attended court in relation to that maliciously inflicting grievous bodily harm on no less than four occasions in 2008, 2009 and twice in 2010. You were somewhat of a younger man then. [Emphasis added]

4. Judge Stuart described the impact of the offence on Mr Toelau Hohua’s victim as follows:

   12.The victim was, unsurprisingly, gravely affected in the aftermath of this matter, both physically and mentally. The victim impact statement which became Exhibit 2 on the plea, includes the following:

   “Before that incident I used to make new friends, meeting new people, but now I hesitate to meet new people. Even I hit back emotionally as well. Now I keep a distance from an unknown person. My lifestyle has been changed.

   I don’t go to parties and family functions. Obviously these things have affected my relationships as well. Sometimes I get frustrated on small things. It could be because I’m a little depressed and may be because it never happened to me before. I have never experienced this kind of assault before. As to the physical injuries, I am still undergoing my treatment. I still feel it had whilst chewing food because of displaced jaw (lost six teeth), not the three averted to in the prosecution summary. My internal injuries are getting better now, but still could not lift heavy things due to broken ribs and infected liver.”

   13.Later he describes that “I lost my job and couldn’t continue work for almost nine- and-a-half months”. And still later “sometimes I feel embarrassed when people look at me because of my changed face appearance (stitches and dislodged jaw, broken teeth)”. [Emphasis added]

5. In considering the appropriate sentence to be handed down, Judge Stuart stated:

   23.Were it not for the gravity of your offending on this occasion and your prior criminal history, I would doubtless have acceded to Mr Waters’ submission that I should deal with this matter by way of a community corrections order, perhaps including a short period of custody. But this was a vicious attack, and the hallmarks of this vicious attack are also in the history of the prior matter that I have averted to concerning maliciously inflicting previous bodily harm on 15 August 2007. Your behaviour must be denounced. Your behaviour must receive just punishment. Others, likeminded to conduct themselves in the way in which you did not this night, must be dissuaded from it. You must understand that you will be punished for what you did in order to dissuade you from re-offending again.

   24.You have pleaded guilty at the very first opportunity and that is significant, not only in terms of the utility of your plea but importantly demonstrating you remorse for your actions this night and further reinforcing my view, that subject to keeping away from alcohol your prospects of rehabilitation are excellent. Talking all those matters into account I sentence you as follows.

   25.On the charge of recklessly causing serious injury I sentence you to be imprisoned for a period of 20 months. I set a non-parole period of 10 months. I declare that there is no pre-sentence detention. Pursuant to section 6AAA of the Sentencing Act 1991 I indicate that but for your plea of guilty I would have sentenced you to a period of three years with a minimum of two years before being eligible for parole. I intend to sign the orders under s. 464 in those circumstances.

6. The offence of which Mr Toelau Hohua was convicted on 11 February 2014 is clearly a serious offence of the type identified in Direction No 65.  It was a violent crime for which Mr Toelau Hohua was sentenced to a substantial term of imprisonment.

7. Further, as set out above (refer to paragraphs 10 and 11) Mr Toelau Hohua has a significant criminal history including convictions for violence in both Australia and New Zealand.   As noted by Judge Stuart, Mr Toelau Hohua’s 2007 offence was “strikingly similar” to his February 2014 offence. Mr Toelau Hohua’s criminal record discloses a clear pattern of violent offending, stretching over a reasonably lengthy period, with the last offence occurring less than three years ago.

8. While the circumstances of Mr Toelau Hohua’s assault convictions in New Zealand are unclear, the facts underlying Mr Toelau Hohua’s conviction for maliciously inflicting grievous bodily harm in 2010 and for recklessly causing serious injury in 2014, and the sentences of imprisonment imposed as a result of those convictions (albeit suspended in respect of the former) indicate that Mr Toelau Hohua’s more recent offending manifests a trend of increasingly serious violent offending.

9. In addition to his convictions for offences involving violence, Mr Toelau Hohua’s criminal history includes convictions for less serious offences between 2007 and 2010, for which Mr Toelau Hohua received fines, a good behaviour bond, and various driving disqualifications:  refer to paragraphs 10 and 11 above.

10. Taking into account the nature of the offending underlying Mr Toelau Hohua’s February 2014 conviction for “Recklessly Cause Serious Injury”, the gravity with which Judge Stuart viewed the offence (noting that, but for Mr Toelau Hohua’s guilty plea, Judge Stuart would have imposed a 3 year period of imprisonment), Mr Toelau Hohua’s clear pattern of violent offending, and the general Guidance and Principles set out in Direction No 65, it is the Tribunal’s view that Mr Toelau Hohua’s history of criminal offending weighs in favour of cancellation and does so to a significant degree.

    Risk to the Australian community should further offences be committed

11. Paragraph 13.1.2 of Direction No 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the person represents an unacceptable risk of harm to members of the Australian community.  Paragraph 13.1.2 of Direction No 65 states:

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

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. [Emphasis added]

    (2) In considering the risk to the Australian community, decision makers must have regard to, cumulatively:

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

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

    Nature of harm to individuals or the Australian community

12. Having regard to the violent nature of Mr Toelau Hohua’s offending, and the impact of the Mr Toelau Hohua’s 2012 offence, as recorded in the sentencing remarks of Judge Stuart, referred to in paragraphs 34 to 38 above, the physical and psychological nature of the harm to individuals should Mr Toelau Hohua again commit a similar offence means that any risk of the offence being repeated is clearly unacceptable to the Australian community.

    Likelihood of engaging in further criminal or other serious conduct

13. In a psychological assessment report prepared in respect of Mr Toelau Hohua, dated 10 August 2013, Dr Patrick Newton (forensic and clinical psychologist) states the following:

    32.The main issues identified with regards to Mr Toelau-Hohua’s conflict-management skills arise from his relatively concrete cognitive style and his broader difficulties with emotional awareness which limit his insight into the processes associated with his anger. Thus, he could identify in only a relatively superficial manner the emotional, physical and cognitive cues that would signal that his anger was growing in intensity. As a result his anger is likely to feel as if it comes upon him suddenly and this makes it more difficult for him to exercise effective control over it in stressful circumstances. He tends to be impulsive and at times will act without having given appropriate regard to the likely consequences of his actions. His impulsive slapping of the victim in this matter (which reportedly catalysed the conflict that followed) is a pertinent case in point.

    33.These concerns would be magnified by the disinhibiting effects of alcohol consumption. When under the influence of alcohol, Mr Toelau-Hohua would have considerable difficulty recognising his emotions and he would also be expected to find his thinking to be clouded. In combination these would impair his ability to avoid conflict should it arise.

    34. Mr Toelau-Hohua has used his recent participation in anger-management counselling to being the process of developing insights into these issues and to develop some concrete strategies for managing them. I would be keen to see this work consolidated and developed to reduce still further the risk of aggressive acting out on his part. As noted above, Mr Toelau-Hohua himself recognises the importance of continued counselling and education in this area and he expressed a strong commitment to pursuing such intervention as soon as he might be able to do so. He said, “I know I’ve got an anger problem. The course I’ve done was good, but I know I’ve got to do more to get on top of this stuff.”

14. In his sentencing remarks, Judge Stuart, referred to Mr Toelau Hohua’s background of disadvantage as set out in Dr Newton’s report, which included Mr Toelau Hohua suffering significant violence and trauma (including sexual abuse) in New Zealand prior to his emigration to Australia, as follows:

    14.You, yourself, have suffered through the violence of others against yourself and against your family members.  In the report of Mr Patrick Newton, which became Exhibit 1LH on the plea, Mr Newton states at paragraph 9, the following:

    “Mr Toelau-Hohua told me that his own childhood had been chaotic, unstable and abusive.  His mother’s work in the sex industry led to social ostracism and ongoing difficulties on account of her patrons.  The family moved frequently with the result that his social networks were repeatedly disrupted.  The only point of stability in his life was provided by his maternal grandmother.  When he was aged eight or nine he was sexually abused by an uncle and again a year or so later by another man.  Mr Toelau-Hohua said that his father had drunk heavily and used illicit drugs regularly.  In 1998 Mr Toelau-Hohua was aged 13, his father beat his stepmother to death, and in 1999 he suicided.  These experiences were not only distressing in their own right but also derailed the development of Mr Toelau-Hohua’s social skills and personality.”

    Mr Newton continues observing that your academic performance deteriorated from late primary school and your repeated moves disrupted your schooling, you having then completed the equivalent of Year 11 studies.

15. Judge Stuart also referred to Mr Toelau Hohua’s work history, Mr Toelau Hohua’s attempted suicide in 2010 and Mr Toelau’s history of drug and alcohol use (the former of which Mr Toelau Hohua discontinued upon his arrival in Australia), as follows:

    15.To your credit you have been employed as a bricklayer and worked in that trade for about nine years but had to discontinue because of injury.  Of significance, you yourself attempted suicide in 2010.  At the point in time shortly before your fourth appearance in the third matter of maliciously inflicting grievous bodily harm.  That last appearance in relation to that matter was on 15 September 2010 and you attempted suicide on 26 June 2010.

    16.You have a history of moderately heavy social drinking dating back to your teens.  You also have been a problematic substance abuser as a young person, but have discontinued your drug use upon arrival in Australia.  Mr Newton observed that you acknowledged you had gone too far and that you expressed remorse for your actions.  There is much material that has been presented to me, both from work mates, family and friends, all of whom speak highly of you in all contexts, which I will come to shortly.

16. Judge Stuart accepted that Mr Toelau Hohua appreciated the gravity of his offending and was genuinely remorseful, and referred to Mr Toelau Hohua undertaking, of his own volition, a 7 week anger management course in early 2013, as follows:

    17.I do accept that you appreciate the gravity of your offending and are genuinely remorseful.  You acknowledge your problems with your anger and have sought help of your own volition whilst in the community awaiting this court case.  This was an anger management course.  You said to Mr Newton “I know I’ve got an anger problem. The course I’ve done was good but I know I’ve got to do more to get on top of this stuff”.  You are right, you do.  You are doing what you can and I have no doubt in future you will continue to address those matters.

1. Judge Stuart also referred to Mr Toelau Hohua’s excellent work history and work ethic, as attested to in references from his employers (including from Mr Luke Garcia, an assistant supervisor at Bunnings Distribution Centre in Melbourne) and concurred with the positive references before him (including from Mr Toelau Hohua’s partner (Ms Chevene Taiaroa) and the club secretary of Mr Toelau Hohua’s rugby league club, the Doveton Steelers Rugby League Club in Melbourne (Ms Larina Utopo) that, subject to Mr Toelau Hohua not drinking alcohol, Mr Toelau Hohua would be able to take responsibility for his actions and deal with conflict in a positive way in the future.

2. Mr Toelau Hohua has provided a lengthy statement, dated 6 August 2015, in which he sets out his background, refers to his rehabilitation efforts in respect of his alcohol use and anger issues.  In that statement, Mr Toelau Hohua states:

   …….My life has changed so much since coming to Australia.  I came to Australia with a clear view of becoming a better person.  For years, from the age of 12 to around about my 20^th birthday I was depressed, full of suicidal nonsense and since then I have come so far.  Since arriving in Australia I have ceased all drug use entirely and prior to going to jail, enjoyed a beer every second or third weekend whilst watching the footy.  Having completed a few rehabilitation courses, I am confident that I will never drink again.  I have learned from my mistake and this punishment.  I hope that you will give me a chance to capitalise on all I have learnt……..

   ……..I have been drug free since 2006 and I hope that this is a good start in the right direction.  I have been involved in a number of rehabilitation courses that have really helped me to identify and manage my attitude……

3. In his statement, dated 6 August 2015, Mr Toelau Hohua apologises and expresses his remorse for his actions leading to his February 2014 conviction, as follows:

   I was 27 the night I was arrested…….This night has haunted me for the past 4 years.  I am so ashamed of my actions.  So embarrassed and remorseful.  I honestly believe I am a victim of the circumstances.  If I could take it back I would.  As a student of GOD, I can only ask for forgiveness.

   ……….

   ………I am deeply sorry for my error of judgement and I apologise for my actions.  I acknowledge that I have made a mistake and I express my deepest feelings of remorse to all parties involved.  I have learnt a lot through this process.  During my term of incarceration, I confronted my deepest fears……I do not go out of my way to cause trouble or start fights.  I am the guy that tries to calm the situation.  Through this process I have certainly changed as a man.  With the help of each rehabilitation course that I have completed, I have come to the realisation that I needed help and have continued to be open with others.  What use to be shameful and made me disgusted in myself. Has in a way, reinvented and brought new meaning to life.  A painful experience like this should never occur.  In my case, I think it was inevitable.  I have made the best of the situation and I will continue to better myself as a person.

4. The Tribunal accepts that Mr Toelau Hohua participated in rehabilitation programs whilst in prison, including an alcohol education program and an anger management program.   The Tribunal also accepts that Mr Toelau Hohua has an extensive support network and family, friends and employers who speak highly of him and that he has expressed sincere remorse regarding the conduct leading to his February 2014 conviction.  Further, it is noteworthy that Mr Toelau Hohua sought help of his own volition, by attending Alcoholics Anonymous meetings, whilst still in the community awaiting trial and his family has reiterated support for what can be described as an ongoing process of ensuring Mr Toelau Hohua adheres to strategies around anger and abstinence from alcohol.  In this regard, the Tribunal refers to the sentencing remarks of Judge Stuart (at [24]) that Mr Toelau Hohua’s greatest chance of rehabilitation, which Judge Stuart recognised, will occur when Mr Toelau Hohua is seeking assistance from appropriate supports and not drinking alcohol: refer to paragraph 38 above.  In a letter dated 12 May 2015, Mr Dirk Francke, Clinical Manager, the Salvation Army (SalvoCare Eastern), describes Mr Toelau Hohua’s participation in the anger management program as follows:

   ……….[Mr Toelau] enrolled in SalvoCare Eastern Support and Recovery Services)……, Anger Management Program on the 8^th of Jan 2013. 

   Mr Toelau Hohua was referred to the Anger Management group and was a very engaged participant from the very onset.  He never missed a session of the then seven week course.  He was always on time, alert during the sessions and was a regular contributor.

   Mr Toelau Hohua’s engagement with the group was indicative of his genuineness in seeking to change his behaviour that had caused him to end up in the situation he found himself in, it is particularly notable that on one occasion Mr Toelau Hohua connected with the writer after the evening session and spent a considerable amount of time opening up about underlying issues which he began to connect with during the earlier session.  Mr Toelau Hohua had begun to have insight into underlying factors and was seeking help in resolving these issues.

5. However, Mr Toelau Hohua has spent limited time in the community since undertaking his alcohol education program and his anger management program, and accordingly the Tribunal considers that it is too early to judge the efficacy of this rehabilitation. It is yet to be properly tested in the community.

6. A “Client Incident Report” from the Yongah Hill Immigration Detention Centre records that Mr Toelau Hohua has been involved in a number of incidents during his time in detention, including threatening to assault a Serco officer (on 1 July 2015), being abusive and aggressive towards a Serco officer (on 1 July 2015), being abusive toward property Staff (on 16 June 2015), being abusive towards a Serco officer (on 11 June 2015), being abusive towards a canteen staff member (on 29 May 2015), being abusive and aggressive towards a Serco employee (on 29 May 2015) and being aggressive and making threats to security staff (on 16 May 2015).

7. Mr Toelau Hohua provided a letter explaining the various incidents recorded in the “Client Incident Report”, as follows:

   Incident written 01/07/2015……..The allegations in threatening to assault a Serco officer are completely false and untrue.  There were 5 other detainees that were present and the manager too.  I am quite annoyed about this because the officer came and saw me a couple of days later and apologised for his wrong doing.

   Incident recorded 29/06/2015. this is recorded as a Major incident.  I am surprised to see that this has been recorded as I thought, and to the best of my knowledge, it was and is policy and procedure.

   Incident 23/06/2015……..I am certain I did not have a visit (sic.) on this day and can only say that this incident did not occur.

   Incident recorded 16/06/2015. this is recorded as a Major incident.  I am surprised to see that this has been recorded as I thought, and to the best of my knowledge, it was and is policy and procedure.

   Incident recorded 29/05/2015………There was no abuse what so ever.  It maybe the case that I would soon take this issue up with management and the canteen operator wasn’t happy about that.

   Incident recorded 16/05/2015.  I acknowledge that I may have raised my voice, used foul language or swore on this particular day, but I absolutely did not threaten the security of the centre at any time……

   At time I may have swore (sic.) or said something out of line.  There have been cases where I have been in agony for a medical condition and it has taken 4-5 weeks to get my medication.  This is the case where I had to walk on crutches for 2 weeks.  Also living in conditions where people put human feces (sic.) on the toilet seat isn’t exactly very nice to say the least.  Some people leave their rubbish all over the tables and sinks because using a rubbish bin is far too hard for them and in some case degrading…….I have been here at Yongah hill immigration detention centre for nearly 3 months.  As I write to you, I still have not received all of my property that I had whilst at M.I.D.C.  I was very concerned to have arrived and have none of my belongings brought with me.  Especially my private documents, medical and legal.  It took Serco 5 Weeks to get my property to Perth and still there are items missing that were clearly on a list they had sent Y.H.D.C and provide to me.

   ……….There were arguments everyday with detainees about space and privacy.  I took the liberty of waking up at 5 o’clock every morning to do my case quite simply because a Serco officer was too comfortable to get up and get very personal and private documents that I had printed (did I mention he was sitting on the detainees couch watching T.V.)  His lack of respect towards me was very rude. I asked nicely and he was adamant that I could wait till morning.  These were very important and private documents…..

   Yes there have been times when I have been stressed.  I don’t deny that.  I do deny any and all accusations that imply I am not of good character.  Living in conditions that are near third world, of course, is stressful.  Some issues are due to the incompetence of Serco staff….

8. Notwithstanding Mr Toelau Hohua’s explanations and denial of any wrongdoing (other than occasionally using inappropriate language), as set out above, Mr Toelau Hohua’s  incident report, while in immigration detention, indicates that he may still have difficulty managing his temper.

9. Further, it is of concern that Mr Toelau Hohua’s recent written account of the circumstances of his offending underlying his 2014 conviction differs significantly from, and appears to attempt to minimise his culpability in comparison to, the facts as recounted by Judge Stuart, the sentencing judge:  refer to paragraph 34 above. This suggests that Mr Toelau Hohua may not fully accept or appreciate his responsibility for his violent offending.

10. As Dr Newton’s report indicates, concerns regarding Mr Toelau Hohua’s anger management issues are magnified by alcohol consumption.  Judge Stuart’s assessment of Mr Toelau Hohua having positive prospects of rehabilitation are specifically predicated on Mr Toelau Hohua not drinking alcohol.  Mr Toelau Hohua refers to rehabilitation that he has undertaken regarding alcohol use, although documentary evidence in this regard has not been provided to the Tribunal. 

11. The Tribunal notes the inconsistency in Mr Toelau Hohua’s evidence concerning his claimed low level of alcohol consumption in Australia and the high level of alcohol consumption apparently involved in the offending leading to his February 2014 conviction.  For example, in his statement, dated, 6 August 2015, Mr Toelau Hohua states:

    Since arriving in Australia I have ceased all drug use entirely and prior to going to jail, enjoyed a beer every second or third weekend whilst watching the footy.

    and Dr Newton’s “Pyschological Assessment” of Mr Toelau, dated 10 August 2013, states that Mr Toelau told him that:

    ….he would now only drink ‘a couple of drinks after work at the end of the week’ and that he would only drink more than this on special occasions which he estimated might occur twice a year.

12. In contrast, Judge Stuart’s sentencing remarks (at [2]) make it clear that Mr Toelau Hohua was “intoxicated” at the time of the offending on 19 May 2012 which led to Mr Toelau Hohua’s conviction in February 2014: refer to paragraph 34 above.  Further, Mr Toelau Hohua’s statement, dated 6 August 2015, which records his version of the night of the offending, states:

    [That] night……I was invited to a work colleagues going away drinks at his house.  My partner at the time and I attended and had a few wines.  Another work colleague of ours (The victim) called and invited us to his house shortly after.  My partner at the time and her friend, another work colleague and our friend that was going away, caught the bus and made our way to be picked up.  We arrived at the house and had a couple of beers and whiskeys.  Everything was good until we were all arguing about work and our conversations were getting competitive and loud.  After a while, we were all asked to go somewhere else by the victims flatmate.

13. This inconsistency raises questions regarding the genuineness of Mr Toelau Hohua’s remorse and demonstrates a failure on Mr Toelau Hohua’s part to fully admit and appreciate the violent and serious nature of his conduct and the impact of his offending behaviour on his victims.   Although Mr Toelau Hohua expresses remorse for his offending in 2014, he does not admit to kicking his victim, he does not admit to pulling his victim out of a car, he does not admit to jumping and stomping on his victim, which is at odds with the findings of the sentencing judge, Judge Stuart. 

14. In the circumstances, the risk of alcohol impairing Mr Toelau Hohua’s judgement, and potentially increasing his change of re-offending, does not appear to have been fully addressed or mitigated.  As such, there is a risk of recidivism.

15. Given the serious nature of Mr Toelau Hohua’s offending and the nature of the harm to individuals should Mr Toelau Hohua engage in further criminal conduct of this nature, any risk that the conduct may be repeated in the future is unacceptable: see paragraphs 6.3(4) and 13.1.2(1) of Direction No 65.

    (ii)       Best interest of minor children in Australia

16. The second primary consideration listed in Paragraph 13 of Direction No 65 is the best interests of minor children in Australia affected by the Decision. Paragraph 13.2(4) of Direction No 65 sets out the following list of factors that 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 of 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

17. The evidence indicates that Mr Toelau Hohua has a close and ongoing relationship with his two adopted step-sisters who are both children and who reside in Australia with their parents.  In a statement, dated 2 March 2015, Mr Toelau Hohua states:

    My mother and step-father have adopted two other children which I am very, very close with.  Zarafina the youngest of the two girls my Parents have adopted has given me a new found passion in life.  She has honestly brought so much happiness into my life.  With my biological, younger step brothers and sisters fostered out when I was young, I never got the chance to be the best older brother I can be.  Ashley, the eldest of the two, is about to start college next year.  I pray, I can be there to nurture her through this very important time in her life.

18. Further, a character reference from Mr Toelau Hohua’s parents, undated, states:

    We have three gorgeous children and [Mr Toelau] is the only son and eldest of the three and the first born grandchild.  His sisters Ashley is eleven years of age and younger sister Zarafina has just turned three.  Lester adores both his sisters, Ashley and Zarafina and is quite protective of them both, especially his younger sister Zarafina.

19. The Tribunal accepts that revocation of the Cancellation Decision would be in the best interests of Mr Toelau’s two step-sisters. However, the negative impact of non-revocation of Mr Toelau Hohua’s visa is mitigated by the fact that Mr Toelau Hohua’s step-sisters receive parental care, including emotional and financial support, from their custodial parents.

20. Further, the Tribunal finds, as contemplated by paragraph 8(5) of Direction No 65, that this primary consideration is outweighed by the other primary considerations in favour of revocation namely the protection of, and expectations of, the Australian community.  

    (iii)      Expectations of the Australian Community

21. The third primary consideration listed in Paragraph 13 of Direction No 65 is the expectations of the Australian community.  Paragraph 13.3(1) of Direction No 65 provides:

    13.3     Expectations of the Australian community

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

22. The Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 (refer to paragraph 25 above), and, in particular, the principle that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens who commit serious crimes in Australia, that non-citizens who commit crimes, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia, and that Australia has a low tolerance of any criminal conduct from people who have been participating in the Australian community for only a short period of time.

23. Mr Toelau Hohua’s criminal history is characterised by repeated and significant violence, in circumstances where Mr Toelau Hohua has sought to resolve relatively minor conflicts by inflicting grossly disproportionate physical harm.  Having regard to the principles referred to above, it follows that the Australian community would regard Mr Toelau Hohua’s February 2014 conviction as a serious offence and a serious breach of the laws of Australia.

24. Mr Toelau Hohua’s record of multiple criminal convictions over a lengthy period (refer to paragraphs 10 and 11 above) indicates a continuing disregard for the laws of Australia, as does his multiple call-ups in respect of his conviction for maliciously inflicting grievous bodily harm.

25. In circumstances such as these, the Australian community would expect that Mr Toelau Hohua should not continue to hold a visa.

26. Further, having regard to the fact that Mr Toelau Hohua commenced residing in Australia permanently in May 2006, and was convicted of his first offence in Australia in October 2007, the Australian community must have a lower tolerance towards Mr Toelau Hohua’s criminal conduct.

    (iv)     Other considerations

27. Paragraph 14(1) of Direction No 65 provides that in deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant, including, but not limited to:

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties;

    (c)       Impact on Australian business interests;

    (d)       Extent of impediments of removed.

    International non-refoulement obligations

1. Mr Toelau Hohua has not made claims with respect to Australia’s international non-refoulement obligations, and the evidence does not suggest that an assessment of this is relevant.

   Strength, nature and duration of ties

2. Mr Toelau Hohua was born in Auckland New Zealand on 10 March 1985.  Mr Toelau Hohua completed his education in new Zealand to the equivalent of Year 11.  Mr Toelau Hohua worked in the construction industry for around nine years as a bricklayer before a back injury prevented him from continuing this employment.  Mr Toelau Hohua migrated to Sydney, New South Wales, Australia in May 2006 (aged 20) and, in 2010, moved to Melbourne where he remained until he was transferred into detention in Western Australia, following his release from prison.

3. Mr Toelau Hohua’s entire family lives in Australia, including his mother, step-father, sisters, uncles aunties and extended cousins.  He has no remaining support network in New Zealand.

4. Since moving to Australia in May 2006, Mr Toelau Hohua has contributed positively to the Australian community through his continued employment since that time.  Mr Toelau Hohua’s work history in Australia includes the following:

   ·2009 – 2010:  labourer/bricklayer for Asta Constructions in Sydney, New South Wales;

   ·2011 – 2013:  production team leader  for Ridders Fresh/Tibaldi Smallgoods in Melbourne, Victoria;

   ·2013 – 2013:  blender for Credo Recruitment in Melbourne, Victoria;

   ·2013 – 2014:  RF Scanning for Bluestone Recruitment in Melbourne, Victoria; and

   ·2014:  scanner at the Bunnings Distribution Centre, Melbourne, Victoria.

5. Mr Toelau Hohua takes his work responsibilities very seriously and, as is evidenced by numerous references tendered in support of his revocation application, he has shown diligence and discipline in engaging in the workforce and has clearly been a valued employee at several businesses.  Mr Toelau Hohua has been offered employment in Australia should he be able to remain here.

6. Mr Toelau Hohua has also contributed to the Australian community via his involvement in the Doveton Steelers Rugby League Club in Melbourne. In a reference dated 12 August 2013, Ms Larina Utopo, the club Secretary of the Doveton Steelers Rugby League Club, states:

   …….[Mr Toelau] has demonstrated great sportsmanship and is well respected with his fellow team mates.

   During his time with Doveton Steelers, [Mr Toelau] has shown generosity through his voluntary work in helping out at our club at various fundraising events such as several Bunning BBQs, as well as assisting with setting up and cleaning up the grounds and clubrooms before and after our home games without having to be told.

   Over the period of 3 years my husband and I have grown to know [Mr Toelau] on a more personal level and he has now become a close family friend.  We have found [Mr Toelau] to be reliable, kind hearted, with a genuine nature and on several occasions we have instrusted (sic.) him and his lovely partner with babysitting our 3 and 5 year old children.

7. However, pursuant to paragraph 14.2(1) of Direction No 65, this time spent contributing positively to the Australian community should be weighed against the relatively short period between Mr Toelau Hohua’s arrival in Australia and the commencement of his offending.

8. Mr Toelau Hohua has provided evidence, including numerous references, regarding his strong ties to family and friends who reside permanently in Australia.  Mr Toelau Hohua’s long term partner, Ms Chevene Taiaroa, provided a number of letters in support of Mr Toelau Hohua as well as giving oral evidence at the hearing (by telephone) in support of Mr Toelau Hohua.  In her evidence, Ms Taiaroa confirmed that she is in a loving and devoted relationship with Mr Toelau Hohua and their efforts to attempt to conceive a child through In Vitro Fertilisation (IVF).

9. The Tribunal accepts that Mr Toelau Hohua’s removal from Australia would cause emotional hardship to, and negatively impact upon, Mr Toelau Hohua’s ability to maintain a direct relationship with, his family and friends here.  Further, Mr Toelau Hohua’s removal from Australia may adversely affect his long term relationship with Ms Taiaroa and cause stress for both of them.  Ms Taiaroa gave evidence that if Mr Toelau Hohua is able to remain in Australia they would recommence IVF but that if Mr Toelau Hohua is unable to remain in Australia, and had to return to New Zealand, she would not move to New Zealand to live with him as all of her family is in Melbourne and she is “set up” in Melbourne.  The Tribunal also acknowledges that if Mr Toelau Hohua were to return to New Zealand, leaving behind his support network in Australia, that he may struggle to re-establish himself.

10. However, noting that paragraph 8(4) of Direction No 65 requires primary considerations to generally be given greater weight than other considerations (refer to paragraph 27 above), The Tribunal finds that the effect of non-revocation on Mr Toelau Hohua’s family and friends is outweighed by the primary considerations which militate against revocation of the Cancellation Decision.  Further, the Tribunal notes that as a New Zealand is, like Australia, a first world, English speaking, country with a similar culture and economy to Australia.  If Mr Toelau Hohua were to return to New Zealand he would, as a citizen of New Zealand, have access to the same privileges as other New Zealand citizens, including health care, education, social security and the like.

    Impact on Australian business interests

11. Paragraph 12.4(1) of Direction No 65 provides that “an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia”.

12. Mr Toelau Hohua gave evidence that he has been exploring a business opportunity in Melbourne involving garment production and the use of an acronym.  However, there is no evidence of any impact on Australian business interests of the kind described in paragraph 12.4(1) of Direction No 65.

13. The Tribunal accepts that Mr Toelau Hohua is highly regarded by his various Australian employers and that he has been offered employment should he be released into the Australian community.  However, there is nothing to suggest any impact on Australian business of the type identified in Direction No 65 that would outweigh the risk of harm Mr Toelau Hohua presents to the Australian community.

    Impact on victims

14. There is no direct evidence regarding the impact of revocation of the Cancellation Decision on Mr Toelau Hohua’s victims.

    Extent of impediments if removed

15. Mr Toelau Hohua is 31 years old and, despite a historical back injury and a previous diagnosis of depression, has a positive employment history. Whilst the Tribunal accepts that Mr Toelau Hohua may face some difficulty re-establishing himself in New Zealand, after his lengthy absence, and would not appear to have the benefit of family support in doing so, his work ethic and skills suggest that he would be able to secure employment. In any event, as a New Zealand citizen, Mr Toelau Hohua would have access to financial and welfare support from New Zealand’s social welfare system, and would have access to medical services.  Further, Mr Toelau Hohua spent the majority of his first 21 years in New Zealand, and would not face significant cultural or linguistic obstacles upon his return.

16. Mr Toelau Hohua has lived in Australia for almost 10 years, and would clearly face emotional hardship if removed from his life here in Australia. Mr Toelau Hohua’s partner, Ms Taiaroa, gave evidence that if Mr Toelau Hohua is removed from Australia and must return to New Zealand she would not move to New Zealand to live with him.  However, Mr Toelau Hohua would be able to maintain communication with, be visited by, and continue to provide financial support to, his family in Australia from New Zealand and there is nothing preventing Ms Taiaroa visiting Mr Toelau Hohua in New Zealand or relocating to New Zealand to live with Mr Toelau Hohua other than that she chooses not to.

    (v)      Conclusion

17. The Tribunal concludes, having weighed all of the primary and other relevant considerations, the correct and preferable decision is to exercise the discretion to not revoke cancellation of Mr Toelau Hohua’s visa, because the harm that would result if Mr Toelau Hohua’s criminal conduct was to be repeated is so serious that any risk that it may be repeated is unacceptable, and not outweighed by considerations favourable to Mr Toelau Hohua.

    DECISION

18. For the above reasons, the Tribunal affirms the Decision.

I certify that the preceding 94 (ninety - four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

........[Sgd]................................................................

Administrative Assistant

Dated 12 July 2016

Date of hearing	1 July 2016
Counsel for the Applicant	Mr G Barns
Representative for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor