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

[2020] AATA 2163

Tufuga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2163 (9 July 2020)

Division:GENERAL DIVISION

File Number:          2020/2393

Re:Saunoa Tufuga

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:9 July 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – multiple criminal offences – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358  
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

9 July 2020

1. The applicant, Mr Saunoa Tufuga, seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

2. The hearing was held in Melbourne on 1 July 2020. Mr Tufuga was self-represented.          The Minister was represented by Mr Aviram of Clayton Utz.

3. For the following reasons, the Tribunal affirms the decision under review.

   BACKGROUND

4. Mr Tufuga is a 28-year old citizen of New Zealand who first arrived in Australia in February 1998 when he was six years of age.[1] Apart from a single 10-day visit to New Zealand in late 2010, he has resided in Australia for the past 22 years.

   [1] Exhibit R1, 84.

5. Mr Tufuga has been charged with approximately 60 offences since 2008. His Nationally Coordinated Criminal History Check dated 6 May 2019 discloses a conviction for armed robbery in 2016, several convictions for violent offences in 2017, as well as drug, dishonesty, conditional liberty, and vehicle/driving offences.[2]

   [2] Ibid, 31-33.

6. On 30 May 2018 Mr Tufuga’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Act,[3] following convictions in the Melbourne County Court in December 2017. The convictions resulted in a total effective sentence of 32 months’ imprisonment.[4] This included a sentence of 15 months' imprisonment for one count of ‘Intentionally cause injury’ to his former girlfriend, who is the mother of their two children.[5]

   [3] Ibid, 168-171.

   [4] Ibid, 349 [66].

   [5] Ibid, 348 [54(a)].

7. Mr Tufuga made representations to have the cancellation decision revoked, but on                 20 April 2020, was notified that another delegate of the respondent declined to do so.[6]

   [6] Ibid, 11-30; 252.

8. On 26 April 2020 Mr Tufuga asked the Tribunal to review the non-revocation decision.[7]

   [7] Ibid, 4-9.

9. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 13 July 2020.

   LEGISLATIVE FRAMEWORK

10. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.

11. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.

12. The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:

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

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

13. Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

14. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).

15. Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.

    Direction No. 79

16. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[8]

    [8] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).

17. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’

18. By way of general guidance, cl 6.2 of the Direction provides that:

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

    (2) ….

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.

19. The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:

    6.3      Principles

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

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

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

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

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

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

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

20. Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’.        The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:

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

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

    (c)Expectations of the Australian community.

21. Clause 14(1) of the Direction requires that other considerations to be taken into account include but are not limited to:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

22. Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

23. Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’

24. Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’

25. Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:

    [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

    …

    [78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

    DOES MR TUFUGA PASS THE CHARACTER TEST?

26. By virtue of his December 2017 convictions and the consequent effect of ss 501(6)(a) and 501(7)(c) of the Act, Mr Tufuga does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.

    ISSUE TO BE RESOLVED

27. It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in                 Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:

    There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

    EVIDENCE

28. The following were tendered into evidence:

    (a)Two volumes of documents lodged by the respondent collectively numbering 581 pages;[9]

    (b)An 11-page statement by Mr Tufuga,[10] who gave oral evidence at the hearing and was cross-examined;

    (c)A one-page statement by Mr Felise Po’e dated 23 June 2020,[11] who gave oral evidence at the hearing and was cross-examined;

    (d)An undated one-page statement by Mr Tom Tufuga,[12] who gave oral evidence at the hearing and was cross-examined;

    (e)A two-page statement by Ms Tina Po’e dated 20 July (sic) 2020,[13] who gave oral evidence at the hearing and was cross-examined;

    (f)Eight statements from other family members and friends of Mr Tufuga, who were not called to give evidence, but whose statements were admitted without objection;[14]

    (g)A Certificate of Completion issued to Mr Tufuga following attendance on a ‘Gambler’s Help  Workshop’ at Metropolitan Remand Centre on 5 July 2017;[15]

    (h)Medical records from the International Health and Medical Services (“IHMS”), referring to counselling and other consultations undertaken by Mr Tufuga;[16]

    (i)Statement of results from Box Hill Institute, recording Mr Tufuga’s completion of six units of study in 2017 towards a Certificate II in Engineering;[17] and

    (j)A Maori cultural program developed by Mr Tufuga.[18]

    [9] Exhibit R1.

    [10] Exhibit A1.

    [11] Exhibit A2.

    [12] Exhibit A3.

    [13] Exhibit A4.

    [14] Exhibits A5 – A12.

    [15] Exhibit A13.

    [16] Exhibit A14. IHMS is contracted by the Commonwealth to provide primary and mental health care to people in immigration detention.

    [17] Exhibit A15.

    [18] Exhibit A16.

    National Criminal History and sentencing remarks

29. Mr Tufuga does not dispute the accuracy of his criminal record,[19] the sentencing remarks from the County Court of Victoria dated 13 May 2016 (“2016 sentencing remarks”),[20] or the sentencing remarks from the County Court of Victoria dated 6 December 2017     (“2017 sentencing remarks”).[21]

    [19] Exhibit R1, 31-33.

    [20] Ibid, 305-326.

    [21] Ibid, 327-353.

    Medical Evidence

30. Mr Tufuga stated in his 2018 Personal Circumstances Form (“2018 PCF”),[22] and confirmed during his oral evidence, that he has no currently diagnosed medical or psychological conditions.

    [22] Ibid, 80.

    Mr Tufuga’s evidence

31. Given his self-represented status, the Tribunal reminded Mr Tufuga at the outset of the hearing about his right to silence and against self-incrimination, which he said he understood. The Tribunal also reminded him about these rights following a question during cross-examination about whether he had committed other acts of violence against his former girlfriend beyond those for which he was convicted.

32. Prior to adopting his statement, Mr Tufuga sought to replace a sentence on page seven beginning with the words: ‘I’ve been tempted many times….,’ to instead read: ‘I’ve been offered many times the opportunity to use drugs by other detainees and inmates while incarcerated but I’ve always turned it down.’ Mr Tufuga then adopted his amended statement as true and correct in every respect.[23]

    [23] Exhibit A1.

33. Mr Tufuga’s statement traversed family problems while growing up, the adverse influence of negative peers, prolonged drug addiction, a tumultuous relationship with his former girlfriend, and the contextual circumstances of his violent attack against his former girlfriend in February 2017. He intended to remain law-abiding in future and is confident of doing so after completing several programs and vocational courses while imprisoned.

    Early life

34. Mr Tufuga referred to his ‘upbringing’ as causing ‘emotional and mental health issues’ that he said were relevant to his addictions and offending. He agreed there was no expert corroboration for any mental health issues, but said his experience as a ‘peer educator’ in prison enabled him to identify the depression he suffered while growing up. He said ‘violence and physical abuse’ by his father adversely affected his self-esteem, caused him to feel like the ‘black sheep’ of the family, and ‘formed [his] identity’ in later life. He said that exposure to violence at a young age was something he internalised ‘subconsciously,’ and ‘inherited along with other negative characteristics.’ While growing up he disliked being blamed for things his siblings did, which caused him to feel ‘anger and frustration.’            Unlike other siblings, who had greater freedoms, Mr Tufuga said he could not leave home unless accompanied by an adult and felt everyone was against him. He referred to two episodes of suicidal ideation, once in primary school and once during his early high school years.

35. Mr Tufuga said he found it hard to make friends and socialise due to a ‘fear of judgement,’ feeling he needed to rely on himself and his inner thoughts. An uncle taught him how to box, which he enjoyed and continued to practice into adulthood. He became proficient enough to have ‘one amateur fight.’ He said some people considered him ‘polite and humble’ because he hardly spoke, while others found his ‘quiteness’ (sic) to be ‘scary, mysterious and intimidating.’ Mr Tufuga said he formed some friendships as a teenager by showing he ‘could be strong and loyal by protecting them from others that posed a threat.’ He would ‘usually fight along side them or fight their battles just to please these friends and…be accepted.’ He copied ‘group trends,’ including by becoming ‘involved in drugs and crime.’

36. Mr Tufuga recalled his initial court appearance in 2008, stating he was ‘pretty scared’ because he had never been in trouble before. He said the judge was going to place him in juvenile detention but was persuaded against doing so by Mr Tufuga’s claimed intention to enlist in the Army. Mr Tufuga said he undertook a ‘first interview’ but did not proceed with the enlistment process because he ‘ended up getting caught up with friends.’ He still aspired to a career in the Army if released.

1. When asked about a three-year period between November 2008 and January 2012 where no convictions were recorded against him, Mr Tufuga referred to several factors that kept him on ‘the straight and narrow.’ These included being on ‘probation and a good behaviour bond’, an ‘officer kept checking up on [him] every fortnight’, he continued involvement in boxing, and his parents prevented him from associating with negative peers.

   Addictions and offending

2. Mr Tufuga said he used cannabis from a young age, but at the end of 2011 or early 2012 ‘joined a new circle of friends’ and started smoking ‘ice.’ He initially used ice ‘once in a blue moon…[but]…over the years…developed into an addiction.’ By 2013 or 2014 his               drug-taking ‘became normal’ and a ‘daily necessity…to feel good.’ Without it he ‘felt depressed and angry.’ Mr Tufuga said in addition to cannabis, he used cocaine, MDMA, and also heroin on three or four occasions. He resumed criminal offending soon after starting to use ice, as a way for him and his friends to get what they wanted, ‘where we felt our parents failed us.’ Without drugs he said: ‘times were dull and with nice things we felt respected and noticed.’

3. Mr Tufuga said his gambling addiction was from ‘2014 and onwards’ and centred on poker machines. After work he and his friends used ice and would then ‘try to win money.’               His gambling escalated and added to his relationship problems, particularly when he stayed out late and lost money.

4. Mr Tufuga said that because of his addictions, he was ‘kicked out of home and…became a fulltime user.’ He recalled staying ‘up for days on end…not contributing to my sons and….pathetic in the eyes of my partner.’ It is in this context that Mr Tufuga said he committed armed robbery, seeing it as ‘an opportunity to make quick money:’

   ‘After commiting (sic) the crime I gave [former girlfriend] the money I'd gotten by telling her I've been working. This made me somewhat proud of myself but this was a temporary solution and I went back to feeling sad.’

5. Mr Tufuga agreed his armed robbery offence was very serious, and the shop assistant would have felt fear as a result of having scissors held to his neck.

6. Mr Tufuga was asked about the reference in the 2017 sentencing remarks to him continuing to use cannabis weekly and methamphetamine on one occasion, after being sentenced in 2016 for armed robbery. Mr Tufuga said he continued to use drugs ‘as a reward or stress reliever,’ because of his deteriorating relationship and ‘working two jobs.’ He thought ice would help maintain his work performance but now realises this was flawed thinking.       When asked whether he failed to disclose the full extent of his drug use at the 2017 sentencing, Mr Tufuga responded: ‘I thought it would work against me, so I didn’t bring it up.’ Mr Tufuga said he had not used drugs following his arrest and imprisonment in February 2017.

   Former relationship and violent incident in February 2017

7. Mr Tufuga said he met his former girlfriend in the ‘early stages of using ice,’ but was already a ‘heavy weed user’ by that time. He claimed to have demonstrated full commitment to the relationship, including by giving up ‘a lot of…friends,’ and expected ‘the same level of respect’ from his girlfriend. Mr Tufuga devoted a significant portion of his statement and oral evidence to factors he believed contributed to his violent attack against her. This included long-standing ‘paranoia’ about suspected infidelity. This led to growing insecurities and caused him to become ‘controlling and spiteful.’ He would ‘smoke drugs and stay out just to make her angry,’ as well as ‘stopping her from seeing her friends’ and accessing her ‘social media accounts without…permission.’ He claimed not to care about the relationship at this point but said his former girlfriend ‘was trying hard to mend the relationship’ by doing everything to prove she still loved him. Mr Tufuga said his ability to respond was impeded by drug use, causing him to feel ‘numb…high and distorted.’ He said he verbally abused his former girlfriend and belittled her, with brief periods of reconciliation followed by arguments and his relapse into drug addiction:

   ‘I would break out [of] the spell from time to time but i always fell to the temptation of using drugs during stressful situations.’

8. Mr Tufuga said his former girlfriend unexpectedly fell pregnant with their first child. He felt happy to be a father but conceded that ‘realistically [he] wasn't ready to be one.’ At the time he said his ‘priorities were all over the place.’ He was ‘battling the addiction of both Ice and Marijuana,…couldn't keep a stable job and…had barely any savings.’ Although realising he had to stop using drugs and find work to support his family, he ‘just couldn't take control of the substance use.’ He claimed that when job offers came his way, he ‘always felt the need to move on which became [his] downfall.’

9. Mr Tufuga said he ‘abandoned‘ his former girlfriend for the ‘majority of the first 5 to 6 months of her pregnancy,’ and was ‘never home with her because [he] was out getting high.’             He considered this a ‘reward for working hard and…[a]…release from stress.’ He claimed to be more present in the relationship in ‘the last few months’ before their child’s birth, after which he ‘stayed around for a while’ until the arguments recommenced and he ‘left to do the same old thing. Back to drugs and staying out and being labelled as a worthless father.’

10. Mr Tufuga returned frequently to the conflict with his former girlfriend. On one occasion he became so ‘fulled (sic) with anger’ that he verbally abused her while she was admitted to hospital, citing purported inconsistencies in her social movements. He ‘stormed out of the hospital and left her there while [he] went off and smoked drugs.’ He referred to ‘this story of hers’ as a key reason why he ‘grew (sic) so much anger towards her.’

11. Mr Tufuga claimed that after the hospital incident the relationship with his former girlfriend was ‘on and off,’ during which she found out he was ‘sleeping with someone else.’                  He subsequently admitted this relationship and his drug-taking to his former girlfriend, stating that her response was to ‘willingly’ assist him in battling his addictions. She paid for their flights to Queensland ‘as a form of rehabilitation,’ but Mr Tufuga said on return to Melbourne he ‘ended up becoming homeless again,’ requiring him to sleep in his car and ‘having to steal at times.’ He was arrested during one theft and interviewed about the armed robbery committed in July 2015, making full admissions about his involvement. He spent three months on remand, during which his former girlfriend advised him she was pregnant with their second child. Mr Tufuga said she ‘was there for me’ during this time and they subsequently reconciled and moved in together once he was released on bail. He claimed ‘things were going well and [he] was working full time,’ but started using Cannabis again ‘as a reward’ for his hard work. This caused him to ‘stay out late with friends’ and arrive home ‘stoned…unmotivated and unresponsive.’ He was again arrested for possession of drugs and remanded in custody for about a month.

12. Mr Tufuga referred to being ‘given another chance to be free and do right by the courts and my family,’ after being released from remand. He found a job and met his daughter.            This period of relative stability was again short-lived, however, and he turned to drugs following renewed conflict with his former girlfriend. He said their relationship ‘took a turn for the worst’ when he began using ice again. Mr Tufuga said he felt his ‘blood begin to boil,’ and ‘constantly picked fights’ with her. He was verbally abusive and ‘put her down every way that I could because I felt she was not being truth’ (sic). They separated once again, with his former girlfriend taking the children and moving back in with her parents, while         Mr Tufuga returned to his parent’s home. Mr Tufuga claimed that despite their separation, he and his former girlfriend ‘maintained an on again off again toxic mutual relationship.’       He described the violent attack against her in the following terms:

    The day before my offences [former girlfriend] was suppose to bring my kids over to see me but chose to reschedule because said she couldn't make it, but I ended up finding out she was down the road from where I was staying and when I called her she kept changing her story and from there I had enough. I gave her an ultimatium and said that if you do not come the next day I was going to run through her house. Scared that I might actually do that she willingly came the next day. I ended up smoking drugs the night before and dwelled on my insecurities.

    When [former girlfriend] walked through the door… I was numb with emotion…I said 'your lying stops here! You're going to tell me the truth!'

    …

    I couldn't stop myself from attacking her. I would have breaks but the moment that thought came back to mind i just attacked her again. I would stop to aid her but just couldn't help but keep make her life a living hell in that situation.

    She ended up going to clean herself up and my parents arrived home shortly after. [former girlfriend] tried to reach out to my parents for help but I forced them to back of and mind their business. My anger levels shot back up and I was angry at [former girlfriend] for trying to get my parents involved. I forced her outside and from there things just spiralled out of control. I attacked her again and even chasing her down as she tried to run away where even when down I attacked her again. I carried her to the car and told her to get in. From there I said i'd take her to the hospital but I only told her that so she could get in the car. From there I had just couldn't stop striking her. I was angry and embarassed that my family and neighbours had seen me do this and I was blaming her for my actions.

    After driving around for some time we stopped by a restroom and I told her to clean herself off. As we drove off [former girlfriend] openly said to me that she's not angry at me and that she still loves me. Overwhelmed with guilt of what I'd just done i broke down in tears because even though i just commited this heinous act she was still willing to say these words to me. All of my anger that I had for her went out the window. I offered to take [her] to the hospital but she refused. She only asked to shower and wanted to sleep. I gave her clothes, let her shower and left her to sleep in my bed while I waited. Emersed in serious guilt I went out to smoke Marijuana to calm down. I went missing for a few hours and returned to find [former partner] still asleep. She eventually woke up with complains of shoulder pain. Completely sad and guilty I said to her that I'd take her to the hospital but she protested against the idea and was worried I'd get in to trouble from the police. I didn't care and wanted to make sure she was ok. And so we drove to the hospital and waitied with her til I phoned a friend of ours to come and stay by her side.

    …

    I was arrested the following morning where I made admissions to the offence and asisted the police with their investigation and I've been imprisoned and curently detained since. This was the darkest part of my life and I couldn't believe the level I dropped to. I apologized countless times to [former girlfriend], my family and to those surrounding my case for my violent and irrational behaviour and past errors.

    (Errors in original)

13. Mr Tufuga agreed that the prolonged attack against his former girlfriend occurred while his parents, children and some siblings were in the home. He stated: ‘I just wanted to hurt [her] no matter who was around.’ He confirmed that no member of his family called the police and although his father tried to intervene, Mr Tufuga told him to ‘back off,’ which he did.       Mr Tufuga explained his family were ‘scared…of what [he] was capable of at that time.’       He was now embarrassed and remorseful for the way he acted in the presence of family members but is grateful they continue to support him.

14. When referred to Victoria Police records and asked if he had ever been violent against his parents,[24] Mr Tufuga agreed he was and remembered them calling the police. When asked about police references to other incidents of violence against his former girlfriend,[25]               Mr Tufuga responded: ‘Violence no, but I have grabbed her or pushed her away when she’s attacked me. Aside from that I’ve just been verbally abusive to her.’ He could not recall kicking his partner on her right thigh, or kicking the bed she was laying on, or throwing a chair while visiting her in hospital in June 2015.

    [24] Exhibit R1, 575.

    [25] Ibid, 578.

15. Mr Tufuga returned frequently to the remorse he now feels about the harm he inflicted on his former girlfriend. He pointed to rehabilitative steps he had taken to prevent a repeat of such conduct. This included attending several programs (detailed later in these reasons), remaining abstinent from drugs while imprisoned, undertaking individual counselling sessions, focussing on his ‘overall health,’ learning how to deal with his triggers and emotions. He had also become a ‘vegan.’ Mr Tufuga claimed to have learned how to identify and better manage ‘risks in…relationships:’

    ‘I will not let my emotions dictate my thoughts and behaviours because I'm well informed and well equiped to tackle any obstacle thrown at me, not that I'm looking for obstacles. I not only look at my own future or my childrens best interests but also the best interests of the Australian community. I have a alot of work to do to change my public image but through hard work, dedication, community contributions and maintaining my hard work ethic, I believe I can and will be a valuable asset to the Australian community.’

    (Errors in original)

    Compliance with conditional liberty arrangements

16. Mr Tufuga recalled appearing in court for the armed robbery offence, and that his older brother Tom gave supportive evidence that the sentencing judge found ‘impressive…and objective.’ Mr Tufuga also recalled the discussion during sentencing about several protective factors helping him remain law-abiding, like strong family support and prospects of work. The judge has subsequently concluded he had ‘reasonable’ prospects of rehabilitation and sentenced him to time served (73 days), and a Community Corrections Order (“CCO”) for four years. Mr Tufuga agreed he:

    (a)twice breached the CCO in the first week, by failing to report within two working days or for induction.[26] Mr Tufuga thought he may have ‘got [his] days mixed up,’ but could not specifically remember why he failed to attend;

    (b)had unexplained absences during the CCO but cavilled at the reference to eight unexplained absences without nominating an alternative number;[27]

    (c)failed to perform any of the mandated 200 hours of unpaid community work on this CCO, and had only completed 84 of 150 hours of a previous CCO;

    (d)failed to attend two out of three scheduled drug and alcohol appointments,[28] which he said was because the counsellor kept re-scheduling on him;

    (e)continued to miss appointments when re-brokered into a different drug and alcohol counselling service closer to home,[29] but claimed to have only missed one out of four appointments, not two out of four appointments as claimed in the Department of Justice report; and

    (f)committed further serious offences while under the CCO, causing Correctional Services to conclude it had ‘failed to have a deterrent or rehabilitative effect,’ and recommending the CCO be cancelled and Mr Tufuga be resentenced.

    [26] Ibid, 408.

    [27] Ibid, 407-408.

    [28] Ibid, 408.

    [29] Ibid, 409.

17. Mr Tufuga agreed his compliance with CCO’s was poor, stating he was ‘juggling’ work and other priorities. He said working and providing for his family was ‘more important than orders of the court,’ acknowledging this might lead to him being rearrested. When asked if he was claiming to have returned to work within the first week of the CCO being imposed, Mr Tufuga said he was not ‘100% certain’ about that, explaining: ‘It was just a bit difficult for me at that time because I didn’t have my priorities straight.’ Mr Tufuga now agrees he ‘should have given more thought’ to fulfilling his CCO obligations.

    Conduct while imprisoned

18. Mr Tufuga was asked about several incidents of reported misconduct while he was imprisoned, stating: ‘I wouldn’t say I’ve been perfect….I do accept that I wasn’t the best behaved in prison.’ He described one incident on 12 April 2019 as an ‘all out brawl’, in which he delivered ‘heavy blows to another prisoner’s face,’[30] following which he claimed to have been ‘slotted for a period of three months in solitary.’ He said he was trying to break a fight up between two opposing groups and got hit, after which he defended himself. When asked why he felt compelled to intervene rather than let prison authorities deal with this situation, Mr Tufuga said he was seen as a ‘community leader’ in prison and was trying to use his authority to defuse an explosive situation.

    [30] Ibid, 532.

19. Mr Tufuga agreed that prison authorities correctly recorded the details of his assault against another prisoner on 20 September 2019, following which he dragged the prisoner back into a cell.[31] Mr Tufuga agreed the two violent prison incidents occurred after his visa was cancelled and he had lodged submissions seeking revocation. When asked why he engaged in violent misconduct when his future ability to remain in Australia was at risk,       Mr Tufuga referred to ‘jail politics,’ stating: ‘As much as you’d like to stay away…it’s all about image…if you let people walk over you…you become a potential target.’

    [31] Ibid, 531.

20. It was put to Mr Tufuga that his violence while imprisoned suggested he did not have control of his ‘triggers,’ had not made the rehabilitative progress he claimed, and was not acting consistently with the advice of his counsellor to ‘think of where your anger’s put you before.’ Mr Tufuga claimed he was ‘still on the progression of my journey to better myself’ at the time of those incidents, but now has ‘complete control.’ Since arriving in immigration detention, he claimed to no longer ‘have the same problem with prison politics.’

    Rehabilitation

21. Mr Tufuga said he confronted his drug and gambling addictions while imprisoned, referring to courses undertaken. He had ‘taken control’ of his life and now understood the triggers causing his addictions, anger and violence. His past issues had been put ‘in check’ through self-reflection and counselling. Mr Tufuga said he wanted to highlight: ‘who I am now instead of who I was.’ This included a program he had put together and hoped to deliver to others, particularly ‘youth,’ based on the ‘Good Life Model.’ He claimed to follow this model and is now determined not to ‘fall back into the same anger and frustration,’ having been ‘given the tools to do that.’

    Interests of children

22. Mr Tufuga returned frequently to the interests of his young children and wanting to ‘become the father they need.’ He agreed that his armed robbery offence was committed after the birth of his first child and the assault against his former girlfriend occurred while both children were present in the home. His efforts at rehabilitation and self-development were linked to wanting his children to look up to him. The parenting courses he had completed taught him more effective communication skills, to ‘have patience’ with his children, and ‘to get through to them in a non-violent matter’ (sic). He particularly wanted to encourage his children to stay connected to their ‘cultural roots’ as they grew older. During his incarceration Mr Tufuga said his relationship with his children was ‘not as strong as it once was,’[32] but he had made the most of visits and they frequently communicated by telephone.

    [32] Ibid, 76.

1. At one point in his oral evidence, Mr Tufuga referred to nieces and nephews, who were not previously referred to in his documentary evidence. He confirmed that his claims about minor children were predominantly focussed on his own biological children, but he also wanted to be a better uncle in future. That was because he had not been very present in the lives of his nieces and nephews as a result of his addictions and imprisonment. He has some contact with his nieces and nephews by telephone and during prison visits, but confirmed he had no parental role. His general remarks about his nieces and nephews did not disclose any differentiation between these children’s interests.

   Future aspirations

2. Mr Tufuga aspired to return to paid employment if released, by ‘working on buildings, roads or on the railway tracks.’ His older brother had offered him casual work and other family members and friends would also assist him in finding a job. Mr Tufuga wanted to undertake further study to enhance his work prospects. In terms of accommodation, he was yet to decide which of the ‘several options’ he would choose from, stating ‘maybe staying with my cousin Tina…my brother has also offered me somewhere to stay.’

   Impediments to repatriation

3. Mr Tufuga said he had no relatives or friends in New Zealand. He last travelled there in 2010 with a cousin from Australia, and they were accommodated by his cousin’s relatives and friends. Mr Tufuga referred in his 2018 PCF to having no support networks in                New Zealand, which he considered a ‘foreign country’ where he would be ‘homeless, no money, no job, no family, no car, no friends.’[33] He claimed that he had heard about ‘how the deportees [were] forming gangs,’ which he did not want for himself.

   [33] Ibid, 81.

   Evidence of Mr Tufuga’s family members and friends

4. Key aspects of the evidence from Mr Tufuga’s family members and friends follows:

   (a)Evidence of Mr Tufuga’s older brother (Tom Tufuga): The witness adopted his most recent statement as true and correct.[34] The Tribunal has noted an earlier statement in evidence.[35] The witness recalled speaking in support of his brother at the armed robbery trial in 2016, stating he was present ‘at every court case.’ The witness was asked why his current evidence should be accepted after similar claims at the armed robbery trial did not result in Mr Tufuga remaining law-abiding. He insisted Mr Tufuga had since ‘educated himself’ and was ‘completely changed from the man he’s been.’ The witness emphasised the importance of a father figure in the lives of Mr Tufuga’s two children, notwithstanding separation from the children’s mother. The witness claimed that the breakdown in Mr Tufuga’s relationship with his former girlfriend was a ‘big factor’ in his offending but was no longer an issue. It was put to the witness that the interests of Mr Tufuga’s children and strong family support were previously insufficient to prevent him offending, but the witness insisted employment and strong family support would make a difference. He said Mr Tufuga was ‘no risk at all’ of reoffending, because he was determined to be a better father. When asked if he was aware of Mr Tufuga ever being violent towards their parents, the witness said ‘every kid has moments with their parents,’ but claimed Mr Tufuga had only ever been verbally abusive during ‘heated arguments,’ but never physically violent.

   (b)Evidence of Mr Tufuga’s first cousin (Tina Po’e): The witness adopted her statement as true and correct.[36] She was aware of Mr Tufuga’s offending and his involvement in ‘physical altercations with some boys’ in prison. This had resulted in him being placed in isolation as a disciplinary measure. She claimed he was ‘trying to protect himself’ in a ‘volatile environment.’ The witness said Mr Tufuga had a ‘lot of internal conflict’ in the past and after the armed robbery conviction had no ‘positive influences.’ After his current lengthy period of imprisonment, however, he ‘has the tools to succeed.’ She said Mr Tufuga had engaged in ‘open, honest and transparent’ conversations with her and her family, leading them to conclude he had been rehabilitated. That was not the case in his first or second years of imprisonment, when the witness said Mr Tufuga was unwilling to change. She had seen significant and positive changes in him more recently, including an ‘increasing ability to express himself.’ She talked to Mr Tufuga daily since his transfer to immigration detention, during which he expressed remorse and understood ‘there are repercussions to his actions.’ The witness said she had a spare room Mr Tufuga could use if released and undertook to provide ‘food, necessities, positive influence,’ and other financial and practical support. The witness said she would assist in trying to help Mr Tufuga get work, naming an operations manager in a prominent Australian company who she claimed had offered him a ‘labourer’s job’ about a month ago. When asked the witness was unable to provide a telephone contact for the person who made that offer. During an adjournment, a Tribunal officer made enquiries with the company in question, who advised they were unaware of an operations manager of that name. Subsequent efforts to contact Ms Po’e by telephone during the hearing to elicit further details were unsuccessful.

   (c)Evidence of Mr Tufuga’s first cousin (Felise Po’e): The witness adopted his statement as true and correct.[37] He claimed to be ‘more of a brother’ to Mr Tufuga than a friend and claimed to have never seen him engage in any violent or abusive behaviour. When pressed, the witness said he was aware Mr Tufuga was ‘arrested from his missus, how he hit her, that’s out of character…that is shocking.’                 When asked if he was aware of any other offending by Mr Tufuga, the witness stated: ‘I don’t know anything other than that crime.’ He confirmed this answer in response to subsequent questions from Mr Tufuga. The witness referred to past adverse influences in Mr Tufuga’s life who were ‘bad news.’ He now regretted not intervening or providing more guidance to Mr Tufuga at the time. He stated: ‘Joseph’s very loyal to people…He became loyal to them and loyalty can get you in trouble.’ He had last seen Mr Tufuga at Christmas and unlike previous occasions, when he said                  Mr Tufuga was ‘ignorant…different…didn’t speak to me properly,’ he was now back to his old self and willing to engage positively with others.

   (d)Evidence of other family members and friends: Eight additional supportive statements were tendered from Mr Tufuga’s family members and close friends.[38] These statements variously refer to Mr Tufuga as quiet, respectful, humble, supportive, generous, family-minded, a loving father, loyal to his friends, remorseful for the harm inflicted on his former partner, rehabilitated, lacking any meaningful support in New Zealand, and deserving of another chance to remain in Australia.       A number offer emotional, financial and practical support to assist his reintegration into the Australian community if released.

   PRIMARY CONSIDERATIONS

   [34] Exhibit A3.

   [35] Exhibit R1, 129-130

   [36] Exhibit A4.

   [37] Exhibit A2.

   [38] Exhibits A5 – A12.

   Protection of the Australian community from criminal or other serious conduct

5. Clause 13.1 of the Direction states:

   (1)  When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

   (2)  Decision-makers should also give consideration to:

   a)    The nature and seriousness of the non-citizen’s conduct to date; and

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

6. Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’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 seriously.

   b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

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

   d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

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

   f)     The cumulative effect of repeated offending;

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

   h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

   Tribunal consideration: The nature and seriousness of the conduct

7. The Tribunal has had regard for Mr Tufuga’s criminal history, the sentencing remarks, material obtained under summons, and his documentary and oral evidence. The Tribunal has also had regard for the respondent’s written[39] and oral submissions. In summary, both parties accept that Mr Tufuga’s criminal conduct, most notably the armed robbery and assault against his former girlfriend, was very serious.

   [39] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 15 June 2020, [24]-[40].

   Tribunal findings: The nature and seriousness of the conduct

8. Mr Tufuga’s criminal history discloses several categories of offending as follows:

   (a)Offences involving violence, the threat of violence, or with a violent aspect: These include: Resist police officer (2016); Armed Robbery (2016); Recklessly cause injury (2017); Intentionally cause injury (2017); and False imprisonment (2017). Mr Tufuga was involved in two violent incidents in 2019 while imprisoned;[40]

   (b)Conditional liberty offences: Mr Tufuga has persistently reoffended, even when subject to court orders. Examples include: Fail to answer bail (2014; 2016); Contravene a conduct condition of bail (2016; 2018); Commit indictable offence whilst on bail (two counts in 2016; 2018); Contravene Community Correction Order (2017; 2018). The Tribunal notes the report by Correctional Services, referring to ‘unsatisfactory’ overall compliance with the 2016 CCO.[41] Mr Tufuga committed numerous contraventions without a valid reason, failed to attend a Compliance Review Hearing, was yet to complete 84 hours out of the 150 hours remaining on a previous CCO, completed none of the 200 hours of unpaid community work he was subsequently directed to perform, and failed to attend drug and alcohol counselling sessions. He was taken into custody in early 2017 as a result of further offending, causing the CCO to be cancelled and for him to be resentenced on original charges;

   (c)Drug offences: These include multiple convictions for drug possession (Cannabis, Heroin, Ecstasy, and Buprenorphine). Having regard for the totality of the evidence, particularly Mr Tufuga’s oral evidence about the extent and persistent nature of his addictions, it is clear his drug use encompasses a broader period than that solely described by drug possession convictions;

   (d)Dishonesty offences: These comprise over 40 charges for theft and stealing between 2008 and 2016, with most of the early charges dealt with through probation and without conviction. Despite an opportunity to learn from these early experiences, Mr Tufuga committed further dishonesty offences including the armed robbery; and

   (e)Public nuisance, vehicle/driving offences: Refuse to leave public place after warning (2016); Unlicensed driving (2016); Refuse or fail to state name and address (2016); Refuse accompany police for breath analysis (2016; 2018).

   [40] Exhibit R1, 531-538.

   [41] Ibid, 406-409.

9. The following aspects of cl 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Tufuga’s case:

   (a)13.1.1(1)(a): Mr Tufuga has convictions for several violent crimes. The armed robbery offence occurred while he was bailed for other offending. It is ‘objectively serious offending,’ resulting from ‘some planning and forethought,’ which could not be considered an impulsive or ‘spur of the moment’ action;[42]

   (b)13.1.1(1)(b): Mr Tufuga was convicted of violent crimes against his former girlfriend while their children were in the home,[43] and while serving a CCO for armed robbery.[44] He repeatedly punched his former girlfriend in the face, resulting in bleeding, swelling, bruising and abrasions to her face and neck, which a clinical forensic physician opined was ‘indicative of several impacts to the head and face.’[45] Mr Tufuga also tipped a chair backwards that his former partner was sitting in, causing her to land on her back, and tackled her on a public street as she tried to flee, causing her to fracture her left scapular and sustain other injuries.[46] He was not dissuaded from continuing his attack by the presence of his parents or other siblings.[47] His offending ‘cannot be seen as a momentary loss of control, but rather a sustained period of violence.’[48]  Such crimes are viewed very seriously, regardless of the sentence imposed;  

   (c)13.1.1(1)(c): Mr Tufuga’s counsel conceded at sentencing in December 2017 that the violent assault against his former girlfriend was against a ‘vulnerable victim,’ who the Court accepted did nothing to provoke the attack. The Tribunal considers this attack was against a vulnerable victim who could not defend herself, and who could not rely on other adults in the home to call the police or effectively intervene. Additionally, Mr Tufuga’s conviction for ‘Resist police officer’ in 2016 is an offence against police in the performance of their duties;

   (d)13.1.1(1)(d): The 32-month sentence of imprisonment awarded to Mr Tufuga in December 2017 reflects the objective seriousness of his crimes;

   (e)13.1.1(1)(e): Mr Tufuga has offended frequently since arriving in Australia, having answered approximately 60 charges between 2008 and 2018. Although there are no offences recorded between 2008 to 2012, his most serious offences occurred after this during a three-year period between 2014 and 2017. There is a discernible increase in the seriousness of offending, from dishonesty offences between 2008 and 2012, to more serious offences involving violence, drugs and breaches of conditional liberty between 2015 and 2017. Mr Tufuga’s conduct reflects a persistent disregard for court orders and Australia’s law enforcement framework; and

   (f)13.1.1(1)(f):  The compounding effect of Mr Tufuga’s offending and other misconduct has imposed significant costs and consequences on his victims and the broader community.

   [42] Ibid, 318.

   [43] Ibid, 50 [25].

   [44] Ibid, 54-55.

   [45] Ibid, 40 [2(p)].

   [46] Ibid, 39-40.

   [47] Ibid, 36-40; 54-55.

   [48] Ibid, 55 [42].

10. For the reasons outlined above Mr Tufuga’s offending is objectively very serious.

    Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

11. Clause 13.1.2 of the Direction states in part:

    (1)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).

12. This aspect of the Direction requires the Tribunal to assess the risk Mr Tufuga poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:

    That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”

13. Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [111]:[49] 

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.                  Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

    (footnote omitted)

    [49] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]).

14. The High Court has held that past actions are legitimate predictors of future behaviour.[50] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’

    [50] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (“Guo”).

15. Mr Tufuga first answered criminal charges at the age of 16. His most recent convictions were at the age of 26. During his 2016 sentencing for armed robbery and other offences, His Honour accepted that Mr Tufuga’s life had ‘spiralled downwards’ since ‘about mid-2015,’ as a result of ‘increasing use of methamphetamine,’ relationship issues with his former girlfriend, and disputation with his parents. His Honour noted Mr Tufuga had made ‘genuine and significant attempts’ to rehabilitate himself, by ceasing use of methamphetamine, mending the ‘schism’ with his parents, working long hours, and through reinvolvement in church activities.[51] Reference was also made by the Court to the beneficial and protective effects of ‘reasonably regular employment,’ an improved relationship with his former partner, the interests of his two young children, stable accommodation, and renewed family support. The Court referred to a report dated 6 March 2016 that assessed Mr Tufuga as a ‘medium risk of reoffending,’ and suitable for a CCO.[52] The Court sentenced Mr Tufuga to time served (73 days pre-sentence detention), fines, and a CCO for four years. Mr Tufuga’s compliance with the CCO was poor and he committed further serious offences within a year.

    [51] Exhibit R1, 316-318.

    [52] Ibid, 321 [36].

1. Of the other considerations enlivened in this matter, Mr Tufuga has lived in Australia for      22 years and his strongest ties are to family and friends here. Evidence about any positive contribution he has made during that time is sparse at best, however, and his offending encompasses his late teenage years and most of his adult life.

2. For the reasons expressed earlier, the interests of Mr Tufuga’s former girlfriend, who is a victim of his violent offending, have neutral impact.  The extent of impediments confronting Mr Tufuga if repatriated to New Zealand are in favour of revocation.    

3. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Tufuga’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These outweigh the primary consideration ‘Best interests of minor children,’ which weighs moderately in his favour, and the other considerations of ‘Strength, nature and duration of ties,’ which weighs substantially in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs slightly in favour of revocation.

   DECISION

4. It follows that the Tribunal affirms the decision under review.

139.     

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…[sgd]……………………………….
Associate

Dated: 9 July 2020

Date of hearing:	1 July 2020
The Applicant:	In person
Advocate for the Respondent:	Mr Tal Aviram
Solicitors for the Respondent:	Clayton Utz Lawyers