Tuimalatu and Minister for Home Affairs (Migration)

[2019] AATA 719

Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 (18 April 2019)

Division:GENERAL DIVISION

File Number:          2019/0492

Re:Taupati Tuimalatu

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris
Senior Member C. J. Furnell

Date:18 April 2019

Place:Melbourne

The Tribunal:

1.sets aside the decision made by a delegate of the Minister on 21 January 2019 refusing to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under section 501CA(4) of the Migration Act 1958; and

2.in substitution decides that the cancellation of the Applicant’s visa be revoked under section 501CA(4) of the Act.

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

Senior Member D. J. Morris   Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory cancellation of visa – consideration of Direction No. 79 – primary considerations – other considerations – any other matter – context of the offending and whether trend of increasing seriousness of violent offending – reviewable decision set aside and new decision substituted

Legislation

Migration Act 1958 (Cth), ss 499, 501, 501CA

Cases

DKXY and Minister for Home Affairs, Re [2018] AATA 3779
DKXY v Minister for Home Affairs [2019] FCA 495
DPP v Atelemo & Ors [2014] VCC 658
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
GWSC and Minister for Home Affairs, Re [2018] AATA 4313
Junior Taupati v The Queen [2016] VSCA 106
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Immigration and Multicultural Affairs v Ali (2002) 62 ALD 673
Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) FLR 441
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation under section 499 of the Migration Act 1958 (made 20 December 2018; commenced 28 February 2019)

Guideline - Persons Giving Expert and Opinion Evidence, Justice Duncan Kerr, President, Administrative Appeals Tribunal, issued 30 June 2015

REASONS FOR DECISION

Senior Member D. J. Morris
Senior Member C. J. Furnell

18 April 2019

1. On 28 February 2018 Mr Taupati Tuimalatu’s (the Applicant) Class TY Subclass 444 Special Category (Temporary) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate of the Minister for Home Affairs (the Respondent) (the Minister) found that Mr Tuimalatu had a ‘substantial criminal record’ in the terms of the Act which meant that he did not pass the character test in the Act. He was also serving a sentence of imprisonment on a full-time basis at the time his visa was cancelled.

2. Under section 501CA(3) of the Act, the Respondent gave Mr Tuimalatu written notice of the decision to cancel his visa and invited him to make representations about revocation of that decision.  Mr Tuimalatu made representations in April, October and November 2018 and documents were submitted to the Department of Home Affairs (the Department) up until December 2018.  On 21 January 2019 a delegate of the Minister decided not to revoke the mandatory cancellation of Mr Tuimalatu’s visa, and he was sent written notice of that decision.

3. Mr Tuimalatu has asked the Tribunal to review the decision not to revoke the mandatory cancellation of his visa.  If the Tribunal affirms the decision, then that means that
   Mr Tuimalatu’s visa remains cancelled.  However, the Tribunal may also set aside the decision and make a decision in substitution for the one made by the Minister’s delegate.

4. The hearing of Mr Tuimalatu’s application took place on 5 April 2019.  Mr Tuimalatu, who was represented by Ms Jennifer Samuta of Samuta McComber Lawyers, gave evidence and was cross-examined.  Mr David Brown of the Australian Government Solicitor represented the Respondent.  Dr Jacqueline Yoxall, psychologist, gave evidence by telephone and Ms Suliana Atelemo, the Applicant’s partner, gave evidence in person.  At the conclusion of the hearing, the Tribunal gave leave to both parties to provide written submissions, the Applicant by 10 April 2019 and the Respondent by 11 April 2019.

5. The Tribunal had regard to a volume of documents collated by the Respondent (‘GD’ documents), together with Statements of Facts, Issues and Contentions submitted by both parties.  The following documents were also taken into evidence:

   -   written statement of the Applicant dated 2 April 2019 (Exhibit A1);

   -   letter dated 30 January 2019 from Dr Raymond Chan, general practitioner, relating to the Applicant’s father (Exhibit A2);

   -   letter dated 20 February 2019 from Dr Chan, relating to the Applicant’s mother (Exhibit A3);

   -   Psychological report of Dr Jacqueline Yoxall dated 26 March 2019 (Exhibit A4);

   -   undated written statement of the Applicant’s stepdaughter, ‘JD’ (Exhibit A5);

   -   Psychological report by Dr Antoinette Butler Wilks relating to Ms Atelemo (Exhibit A6);

   -   LSR – Level of Service Inventory - Revised

   relating to the Applicant dated

   
   

   25 March 2019 (Exhibit R1);

   -   Violence Risk Appraisal Guide (Exhibit R2).

   Migration history of the Applicant

6. Mr Tuimalatu was born in Apia, Samoa, in August 1979.  He migrated to New Zealand with his parents aged around four years.  He became a New Zealand citizen.  In February 1992 Mr Tuimalatu migrated to Australia with his parents and two siblings, a sister born in 1981 and a brother born in 1985.  He has resided in Australia since 1992, departing on one occasion to Samoa for the funeral of a family member in 1997 for approximately two weeks (GD, p 150). 

   Legislative framework

7. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of Mr Tuimalatu’s visa if he made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepts that
   Mr Tuimalatu made representations within the prescribed period.

8. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (a)       the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…

   (ii)…; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9. The first limb of the mandatory cancellation power is satisfied.  Mr Tuimalatu does not pass the character test. The Tribunal had before it (GD, p 15) a National Police Certificate dated 5 June 2018. Relevantly, the certificate records that on 29 April 2014 at the Melbourne County Court, Mr Tuimalatu was convicted of the offence of ‘Recklessly cause serious injury,’ and was sentenced to 4 years imprisonment; and the offence of ‘Affray (common law),’ and was sentenced for this offence to 12 months’ imprisonment, 6 months of the sentence concurrent.  This meant he had to serve an aggregate prison sentence of 4 years and 6 months. Section 501(6) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’.  A person has a substantial criminal record under section 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more. 

10. The second limb of the mandatory cancellation power is satisfied.  Mr Tuimalatu was serving a sentence of imprisonment on a full-time basis and was so doing at the time his visa was cancelled (section 501(6)(b) of the Act).

11. Section 501CA relevantly provides that:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (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.

12. Having found that Mr Tuimalatu fails the character test, the sole issue before the Tribunal is whether there is another reason why the original visa cancellation decision should be revoked. 

13. The Federal Court stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

    The Tribunal adopts this approach.

    Ministerial Direction No. 79

14. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having powers or functions under the Act (such as his delegate and the Tribunal) about the performance or exercise of those powers.  The delegate who refused to revoke the mandatory cancellation of Mr Tuimalatu’s visa had regard to Direction No. 65, made under section 499.  On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made Direction No. 79 (the Direction) under section 499.  The Direction commenced on 28 February 2019 and at section 3 revokes Direction No. 65 from that date.  Pursuant to section 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.

15. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. 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.

    (Emphasis added.)

16. Relevantly, the Direction includes the following principles at paragraph 6.3 (principles which, in the Direction, are said to provide a framework within which decision-makers should approach their task):

    (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.

17. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, a decision-maker is required under the Direction to take into account the considerations set out in Part C of the Direction.  Part C is divided into ‘Primary considerations’ and ‘Other considerations.’  The primary considerations in Part C are set out in paragraph 13(2) of the Direction.  They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’

18. Paragraph 14(1) of the Direction sets out other considerations in relation to revocation requests.  They are: ‘International non-refoulement obligations; Strength, nature and duration of ties; Impact on Australian business interests; Impact on victims; and Extent of impediments if removed.’  The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).

    The Applicant’s background circumstances

19. The Respondent noted that the Applicant is the father of five children from three different relationships.  With his first partner, he has a daughter aged 20, who lives in Brisbane.  With his second partner he has two sons, ‘M’ aged 12 and ‘D’ aged 10.  They also live in Brisbane with their mother.  With his third partner, Ms Atelemo, Mr Tuimalatu has two sons, ‘O’ aged 5, and ‘R’ aged 3.  Ms Atelemo has two daughters from a previous relationship, ‘JD’ aged 18, and ‘LD’ aged 16.  Evidence was given to the Tribunal that the Applicant performs a father figure role for Ms Atelemo’s daughters since she commenced her relationship with him in around 2010, and that in spite of his incarceration, his relationship with Ms Atelemo is strong and loving.

20. The Respondent submitted that Mr Tuimalatu had a conviction for the offence of ‘Robbery with actual violence’ before the Brisbane District Court on 19 February 1999 (GD, p 16).  In relation to this offence, the court recorded a conviction and imposed a 12 month term of imprisonment to be served by way of an intensive corrections order.  On 8 October 1999 the same court convicted Mr Tuimalatu of breaching the intensive corrections order. The court revoked the order and ordered that the unexpired part of the prison sentence be served (of about six months).  Mr Tuimalatu was aged 18 when this offence was committed.

21. The Respondent submitted that Mr Tuimalatu was convicted of a further seven offences during the period between February 2002 to January 2009 relating to public nuisance offences, obstructing a police officer and contravening an order to provide identifying particulars.  The Courts imposed fines in relation to each conviction.

22. On 9 September 2009 at Brisbane Magistrates’ Court, Mr Tuimalatu was convicted of the offence of ‘Wilful Damage,’ and fined $400.  On 5 October 2009 at the same court,

    
    

    Mr Tuimalatu was convicted of the offence of ‘Possessing dangerous drugs’ (9 counts), and fined $400.  On 24 November 2009 he was convicted (again in the same court) of the offences of ‘Commit public nuisance’ (6 counts) and ‘Possessing dangerous drugs’

    
    

    (9 counts), and was fined $600.  Mr Tuimalatu gave evidence to the effect that 2009 marked the start of a change in approach, a change that saw him ceasing to take illicit drugs in around 2011 and, increasingly, accept his parental responsibilities.

23. Mr Tuimalatu was charged with ‘Affray’ and ‘Recklessly cause serious injury’, arising from a dispute involving extended family members of his partner, which occurred on

    
    

    2 October 2012.  The circumstances of the offending were outlined in the sentencing remarks of Her Honour Judge Hampel (GD, p 24-70).  Her Honour said (GD, p 26) that eight people in two cars drove to the house of a couple.  At least two of the visitors were armed with knives and at least one with a baseball bat.  A short time later, as the aggressors departed the residence, three people had been kicked, punched and stabbed.

24. Mr Tuimalatu entered a plea of not guilty to the charges.  A jury trial took place over

    
    

    22 days in March and April 2014 at the County Court of Victoria.  Mr Tuimalatu was on bail throughout the trial.  However on 10 April 2014, the 22nd day of the trial, when the jury was about to commence the second day of deliberations, he did not appear (GD, p 37).  By coincidence a juror was sick and so the deliberations were suspended until the next day.  On the following day, Mr Tuimalatu also did not appear in accordance with his bail conditions.  Her Honour directed that the jury resume its deliberations in his absence.

25. The Respondent submitted (and the Applicant later confirmed in evidence) that he absconded for a period of more than 17 months.  On 18 September 2015 Mr Tuimalatu was apprehended by Queensland police and extradited to Victoria.  On the following day, he appeared before Judge Hampel (GD, p 75) and has been serving his sentence since that date.

26. The jury found Mr Tuimalatu guilty of the two offences in absentia, and he was sentenced to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years and six months.

27. In 2017 Mr Tuimalatu lodged an appeal before the Court of Criminal Appeal of the Supreme Court of Victoria in relation to him being sentenced in his absence and on the quantum of the sentence and the length of the non-parole period.  On 8 May 2017 the Court (Redlich, Santamaria and Ferguson JJA) dismissed the appeal (GD, p 71-85).

28. The Respondent submitted that the seriousness of Mr Tuimalatu’s offending has increased over time, culminating in ...violent offending (Respondent’s Statement of Facts, Issues and Contentions, para 52).  Mr Brown drew the Tribunal’s attention to Judge Hampel’s finding that the Applicant’s participation in the affray was more serious by reason of having armed himself with a baseball bat that was in the boot of his car (GD, p 67).

1. The Respondent submitted that Mr Tuimalatu’s criminal offending was compounded when he absconded after 22 days of a contested hearing while the jury was considering its verdict and remained at large in the community for 17 months. The Respondent submitted that this ‘caused fear to the victims of the October 2012 attack, who were frightened that he might return to commit further violence against them.’

2. The Respondent submitted that Mr Tuimalatu’s offending should be viewed very seriously under paragraph 13.1.1(a) of the Direction and that account should be taken of the length of the sentence imposed by the Court in accordance with paragraph 13.1.1(d) of the Direction.

3. The Respondent submitted that Mr Tuimalatu remained ‘in denial’ and was ‘bitter about the jury’s finding of guilt,’ and that ‘there remains a real risk of the applicant re-offending.’  The Respondent submitted that the Applicant has yet to accept responsibility for the offending of which he was found guilty by a jury.

4. In terms of the best interests of minor children in Australia (paragraph 13.2 of the Direction), the Respondent accepted it would be in the best interest of Mr Tuimalatu’s five minor children (i.e. his four children and one minor stepchild) for the mandatory cancellation of his visa to be revoked.

5. In terms of the expectations of the Australian community (paragraph 13.3 of the Direction), the Respondent submitted that the violent offending for which Mr Tuimalatu was most recently convicted is simply unacceptable to the Australian community and his failure to adhere to the conditions of the intensive corrections order imposed on him in 1999 and the ‘contempt he showed towards the bail conditions’ before he absconded to Queensland for 17 months represent significant breaches of trust and an unacceptable lack of respect for Australia’s system of law enforcement.

6. The Respondent submitted that the community would have some sympathy for the impact on Mr Tuimalatu’s family of his being required to return to New Zealand but this sympathy would be tempered by a recognition that the family have the option of moving to New Zealand together.

   Evidence of the Applicant

7. Mr Tuimalatu gave evidence of being born in Samoa and moving to Mangere, a suburb of Auckland in New Zealand, when aged about three.  He grew up there for around 10 years. His parents then moved to Queensland to provide better opportunities for their children. 

8. Mr Tuimalatu said he completed grade 12 at high school in Brisbane but, when pressed, said that in his final year of school he was ‘often absent’ and when he was attending classes he was not paying attention. He said that he didn’t think he sat the end of year examinations and, if he did, he did not believe he received any result.  After leaving school he started work in retail and moved to factory work, then into the transport industry and then furniture removal.

9. Mr Tuimalatu said he was employed by two large national removals companies, the first from 2000 to 2010 and the second from 2011 to 2013, undertaking general house moves and office removals.  In 2012 he said he tried to start his own business.  He said he purchased a truck and started work, initially subcontracting to others, but that the business faltered when the family dispute of October 2012 took place, soon after he bought his truck.

10. When asked how the dispute started, Mr Tuimalatu said he did not know – it was a dispute between his in-laws and his partner’s younger siblings but that, as he had not long been living in Melbourne, he did not know all of the personalities involved.

11. In terms of the events on 2 October 2012, the day of the major offending, Mr Tuimalatu said that he initially went in support of his partner, Ms Atelemo, to help her resolve family issues.  When asked by Ms Samuta whether he had since reflected on the events of the day, Mr Tuimalatu responded ‘Every day of the last 3 and a half years, I play it over and over again.  How I could have done more to defuse the situation and help the family not to fight each other.’

12. Mr Tuimalatu said he had moved to Melbourne in 2011 to be with Ms Atelemo, who he had met at a church event while she was residing in Brisbane.  He told the Tribunal he had only met his partner’s family once or twice.  He said that there was a dispute going on, including on long telephone conversations Ms Atelemo was having with family members, but he was only vaguely aware of it.

13. Mr Tuimalatu was asked by Ms Samuta about the baseball bat referred to by the sentencing judge.  He said he had the bat in his car.  He said he took it as a support because he didn’t know the family members and ‘as a scare tactic’ because he was travelling with a number of females.

14. Mr Tuimalatu was asked about rehabilitation programmes he has undertaken while in prison.  He named some of the courses, and the Tribunal had evidence of those before it (GD, p 139-141).  Mr Tuimalatu said he had found them ‘educative and insightful’.

15. Ms Samuta asked the Applicant why he absconded to Queensland during his trial. 

    
    

    Mr Tuimalatu said that at the time his head was ‘all over the place’.  He said he knew when he broke his bail he was doing the wrong thing, but he couldn’t think straight and wanted to see his parents (in Brisbane).  He said he made a ‘big mistake and I regret doing that’.  He said that he had a sense of relief when he was re-arrested and returned to Victoria.

16. In terms of his domestic situation, Mr Tuimalatu said that Ms Atelemo had supported him ‘one hundred per cent’ and had taken their two young sons to visit him in prison once, sometimes twice, a week.  He told the Tribunal about the close relationship he has with Ms Atelemo’s two daughters, JD and LD, which is corroborated in terms of JD by her written statement (Exhibit A5).

17. In terms of what the family would do if his visa is not restored, Mr Tuimalatu said he and Ms Atelemo have discussed this eventuality.  It was his feeling that it may be better for the children to stay in Australia.  He said that when his parents and siblings obtained Australian citizenship in the 1990s, his parents suggested he should apply too, but ‘I didn’t get around to it.’

18. Under cross-examination, Mr Tuimalatu said he recalled the environment in Mangere, Auckland, New Zealand was significantly influenced by the Pacific Islander presence and that it was a ‘rough and tough environment to be in as a kid’.  He said that older siblings of some of his school friends were involved in gangs and some brought that mentality to school.  He said that when his family settled in Inala in Brisbane he deliberately chose to go to a school in Toowong about 30 minutes train ride away from where they lived, because that school had a lower concentration of Pacific Islander students, which he thought was a better mix.

19. In terms of the final year of his schooling, Mr Tuimalatu said that he ‘started to go off the rails’ at that time and missed so many classes that he did not sit the final year exams.  He said he first started to drink alcohol at a friend’s party when aged around 14 or 15 and first tried cannabis aged 15.  He agreed that taking cannabis contributed to his losing focus on his school studies.

20. Mr Tuimalatu said he met a woman about three years older in his final year of school.  They had a daughter together (who is now aged 20).  They stayed together until around 2002, but did not live together – each lived with their respective parents until his partner moved to Cooktown to work. 

21. In terms of his first conviction for robbery with actual violence, Mr Tuimalatu said he was with a group of friends smoking cannabis in the Botanical Gardens in Brisbane and they had an altercation with another group which resulted in two others of the group ‘falling’ into the creek.  He said the police attended, he was arrested and, with others, charged.  He said when he attended court he pleaded guilty.  He recalled speaking briefly to a duty lawyer at the time but did not remember the specifics of the proceedings.

22. Mr Tuimalatu said he initially abided by the intensive corrections order imposed by the court for around six months but started to ‘miss days’ when he was required to undertake community service.  He said he did not realise the seriousness of his absences.  He said he was working at the time and told his boss he would be absent for two hours to attend court about breach of the order, but found himself taken into custody and served six months in prison.

23. Mr Tuimalatu said that this time in prison was an ‘eye opener’.  He said on his release he was still with his then partner.  She moved to Cooktown with their daughter.  He moved to Cooktown but could not get work so he moved to Cairns and drove back and forth to see them.  He said he was using cannabis ‘almost daily’ at this time.  He said his partner fell pregnant and had an abortion and he became very upset.  A friend gave him some other drug, the nature of which he has never known.  He said the physical effect on him was significant – he started hallucinating and was admitted to Cairns Hospital for two days.

24. Mr Tuimalatu said that, although he never took the unknown drug again, his hallucinations ‘didn’t quite stop for years’ and he said he ‘battled demons for a few years’.  His relationship ended and he returned to Brisbane to live with his parents.

25. Mr Tuimalatu said he resumed working and started to rebuild his confidence.  He commenced a new relationship and his new partner became pregnant and they set up a home together.  After the birth of their older son, M, he said her parents immediately took his partner and the new baby back to their home, saying that she had post-natal depression.  He said she never returned full-time to live with him but they maintained an intermittent relationship and in 2008 his partner gave birth to their second son, D.

26. At this time Mr Tuimalatu said he was socialising a lot to keep his mind off the failing relationship.  He went clubbing and caused a nuisance and got a few charges for public nuisance (which the Tribunal notes are recorded in the National Police Certificate).

27. Mr Brown asked the Applicant about a 2009 conviction for possessing dangerous drugs and he responded that he had marijuana, never anything else.  Mr Tuimalatu said the relationship with his second partner petered out but that he continued to provide financial support for M and D right up until the time he was incarcerated.  He said that he speaks to M and D once a week by telephone but did not know whether their mother had told them he was in prison. When asked whether his second partner, the mother of M and D, had a new partner, Mr Tuimalatu said he was not sure, but he didn’t think so.  When asked what he did when he absconded from Victoria during his trial, he said he made his way to Queensland and stayed with his brother, but did not work for this period.  In 2015

    
    

    Ms Atelemo joined him with their older son, O, and she became pregnant with R, who was born after Mr Tuimalatu had returned to commence his sentence.

28. Mr Brown asked about the events in October 2012.  Mr Tuimalatu said he and his partner first visited the house of another family in the afternoon and Ms Atelemo told the residents to stop harassing her siblings.  He said Ms Atelemo went to the house and ‘tapped the door with a baseball bat’ but the residents, although they were home and could be seen through the windows, did not emerge.

29. He said they went home and he thought matters had calmed down.  In the evening he said he was watching television.  He was aware that Ms Atelemo had been on the telephone to her family and she suddenly grabbed the car keys and said she was going.  He said that he urged her to leave matters alone but he decided to go with her, first to her brother’s house and then to a cousin’s house.  He said he went partly to protect his partner ‘and the other females’ and partly because he was worried his partner would otherwise get into trouble.

30. When asked why he took the baseball bat from the car, Mr Tuimalatu responded ‘honestly I was fearful for what might happen; I didn’t know the other family’.  The Applicant told the Tribunal that a fight began and he became involved.

31. Mr Tuimalatu was asked about why he queried the Judge’s remarks and specifically this statement (GD, p 105):

    Mentally, jail is not good for anyone but we all have to pay the consequences of our actions. I feel as though I’ve been given the full force of an unjustified sentence based on my involvement regarding the offences.  But I’m copping it sweet on the chin and will serve out my punishment.

    Mr Brown asked the Applicant what he meant by ‘an unjustified sentence’.  Mr Tuimalatu responded that he did not challenge the Judge on the outcome but ‘at the time, listening to how it was played out, I dispute that I am that kind of person’.  In answer to direct questions from the Tribunal about why the baseball bat was in his car that day,

    
    

    Mr Tuimalatu said they carried a lot of sporting gear in the boot because he played various sports with the children. 

32. Mr Brown pressed the Applicant on why he chose to breach bail and ‘cut and run’, and he said he tried to get his lawyers to challenge certain evidence given at the trial and at the same time family elders were trying to resolve the dispute between the two families outside the court process.  He said that he was very upset that within the GD were newspaper articles linking his name with photographs of persons injured in the affray, because he himself had not been the one to hit them.  He admitted that he did chase someone away, brandishing the baseball bat (which the Court found was a person going to the aid of one of the victims), but said that the person he chased away was, in his estimation, intending to attack some of the females present.  Mr Tuimalatu said ‘I shouldn’t have been there in the first place, stuck in a family dispute with people I didn’t know that well.’

33. Mr Brown asked Mr Tuimalatu what he had learned from the programmes he had undertaken in prison.  He said that he had learned to understand how and why people react.  He said he had started reading in prison, and had never been a reader before.  He said that he had tried to help young Islanders serving sentences and had noted that many of them came from single parent families without a father-figure, and he did not want that for his own children.

    Evidence of Dr Jacqueline Yoxall

34. The Tribunal heard evidence from Dr Yoxall, psychologist.  Her report was before us and recorded that she undertook a psychological assessment via telephone on 22 February and 12 March 2019. 

35. It was troubling to the Tribunal that the Applicant’s lawyers were unable to produce the letter of instruction to Dr Yoxall and it was apparent that a formal letter, while prepared, had not been sent.  The Tribunal is mindful of the Guideline for Persons Giving Expert and Opinion Evidence, issued by the Tribunal President on 30 June 2015 and that there is an expectation (paragraph 4.1(b)) that the details of the questions an expert witness was asked to address is provided to the Tribunal.  The Tribunal however accepts Ms Samuta’s assurances that she has frequently requested expert reports from Dr Yoxall, and

    
    

    Dr Yoxall’s direct evidence that she has often appeared at the Tribunal, and understood that her role was to provide expert evidence and not be an advocate for a party.

36. The Respondent requested the ‘score cards’ in relation to Dr Yoxall’s assessment of

    
    

    Mr Tuimalatu and tendered them in evidence (Exhibits R1 and R2).  Dr Yoxall’s conclusion in her report (page 26) was: ‘In my view, after consideration of all these factors, weighing up against the index offending, Mr Tuimalatu’s risk of reoffending is low.’

37. Under cross-examination from Mr Brown and direct questioning from the Tribunal, about notes on the LSI-R – The Level of Service Inventory – Revised, Dr Yoxall conceded that she had wrongly calculated the number of offences of which the Applicant had been convicted.  When asked about the fact that Ms Atelemo had received a conviction in terms of the affray, Dr Yoxall conceded that she had incorrectly recorded the data according to whether the person has a ‘Criminal/Family spouse’. Mr Brown told Dr Yoxall that

    
    

    Mr Tuimalatu had given evidence to the Tribunal that he had not completed year 12 of his schooling, but she responded that he had given her different information and that given he had attended schooling in year 12, she did not believe she would change her conclusions in that part of the score card.

38. Dr Yoxall conceded that she was wrong in the fact that Mr Tuimalatu had not had mental health treatment in the past.  Given that Dr Yoxall recorded in her report that she interviewed Mr Tuimalatu in prison, Dr Yoxall was asked why she had circled ‘No’ to the question about whether the subject had ‘ever been incarcerated upon conviction’, and she conceded this was an error.  The Tribunal asked Dr Yoxall about why she circled ‘No’ to the question as to whether the subject was currently unemployed, and she said that this question should be answered, when assessing a person who is in custody, as to their employment status immediately prior to incarceration, otherwise the assessment would be skewed against those in prison.  While the Tribunal accepts this logic, in terms of assessment against a control group, it was pointed out to Dr Yoxall that Mr Tuimalatu had not been working for the 17 month period between absconding from the court and his

    
    

    re-arrest.  Dr Yoxall said she did not regard this as being unemployed, because he was ‘not employed because he had absconded’.

39. Dr Yoxall conceded in her oral evidence that the number of errors she had made in the score card would alter the written conclusions in her report and that she would now assess Mr Tuimalatu as at ‘low risk’ of violent offending and ‘low to moderate’ risk of other offending.’

    Evidence of Ms Atelemo

40. Ms Atelemo gave evidence about being born in New Zealand and growing up there for her first 27 years, immigrating to Australia in 2009.  She said she worked in retail management for 15 years until around 2014-15 but was not currently working.  She said she stopped work because she wanted to assist the Applicant in establishing his new business in 2012. The plan was for her to provide office administration and support while Mr Tuimalatu operated the truck.  Ms Atelemo told the Tribunal that at the time of the October 2012 incident they had just secured a warehouse to store furniture.

41. Ms Atelemo said that the Applicant treats her daughters like his own and that he effectively was their father figure, even more so since the death of their biological father in New Zealand in 2017.  She told the Tribunal that her older daughter, JD, had recently commenced at a university in Melbourne, undertaking a bachelor’s degree.

42. In terms of her children with Mr Tuimalatu, Ms Atelemo said that the older son, O, knows his father though photographs and visits, but that the younger son, R, is too young to have a great knowledge of his father (as he was born after his father went to prison), although he, too, visits weekly.

43. Ms Atelemo said, in terms of the offences of October 2012, that she now wished she had gone straight to police at the time.  She said she wished she had not got involved in the extended family dispute and ‘do not now want to be involved with them, to be honest’.

44. When asked whether she thought Mr Tuimalatu would be likely to be violent again, she said he never had been before, to her knowledge, and she felt that the courses he had undertaken while in prison had helped him to learn about judgment and pick up management skills.

45. In answer to Mr Brown, Ms Atelemo said she and the children would go to New Zealand, if Mr Tuimalatu’s visa was not restored, but that she was very concerned about opportunities for them there, especially if they settled in South Auckland.

    CONSIDERATION

46. The Tribunal considered each of the primary considerations in the Direction and, as relevant, the other considerations.

    Primary considerations

    Protection of the Australian community (paragraph 13.1)

1. The Direction requires the Tribunal to have regard to the nature and seriousness of the conduct of the non-citizen to date, and the risk to the community should he commit further offences.

   The nature and seriousness of the conduct (paragraph 13.1.1)

2. The Direction requires the decision-maker to take into account the nature and seriousness of the Applicant’s offending or other conduct to date.  The National Police Certificate (GD, p 15-17) lists thirteen appearances by Mr Tuimalatu before the courts in Queensland and Victoria between February 1999 and April 2014.  It would appear that eight of these appearances related to relatively minor offences relating to public nuisance, obstructing police officers and using insulting words.  Using that description is not to diminish the periodic nature of this offending, but from the certificate it can be seen that the offending was adjudged to be at the lower end of the offending scale, and dealt with by fines.  There were also offences for possession of drugs, which Mr Tuimalatu told the Tribunal was cannabis, also dealt with by way of fine.  He has been to prison twice, the first time as mentioned above because he breached an intensive corrections order which caused the court to make substantive a suspended sentence, and the second in relation to the serious offending of recklessly causing injury and affray, which precipitated the cancellation of his visa.

3. Up until the events of October 2012, the Tribunal takes the view that Mr Tuimalatu’s criminal conduct was sporadically unsatisfactory, and properly dealt with by the police and judicial system, but not at the higher end of seriousness.  There was one 1999 offence relating to violence, which may be regarded as serious, but it appears on the evidence that the physical side of what occurred involved two people either falling (or perhaps being pushed) into a creek.

4. The Tribunal does not accept the Respondent’s submission that the seriousness of
   Mr Tuimalatu’s offending has ‘increased over time, culminating in…violent offending’ insofar as that submission was intended to convey an impression of a single pattern or trend of increasingly serious offending.  The events of October 2012 did give rise to offending that was more serious than Mr Tuimalatu’s earlier offending.  The fact that Mr Tuimalatu’s most recent offending is his most serious does not reveal any particular trend.  The context in which the October 2012 events occurred was unique, relative to the context in which Mr Tuimalatu’s other offending occurred.  Mr Tuimalatu was not the instigator of those events and he became involved in them in support of his partner and her siblings.  While this does not excuse his offences (or detract from their seriousness), it does serve to differentiate them from his other, earlier, offences which would appear largely to have occurred when Mr Tuimalatu had been out partying, during a period in which he indulged in illicit substances and had not fully accepted his parental responsibilities.  Moreover, even if context was to be ignored and regard was to be had only to the nature of all the offences of which Mr Tuimalatu has been convicted, no ‘trend’ of increasing seriousness is revealed.

5. While no trend of seriousness is revealed by Mr Tuimalatu’s offending, the cumulative effect of it has clearly been harmful not only to those immediately affected, but also to the Australian community at large.

6. In terms of the events of October 2012, Judge Hampel referred to the agreed plea summary (GD, p 29) which:

   acknowledges [victim’s name redacted] was punched and kicked by members of the group of men, and struck by [the Applicant] with a baseball bat, causing him to fall to the ground.

7. However, Her Honour goes on (GD, p 30):

   Whilst I am satisfied that [the Applicant] was armed with a baseball bat at this time, I am not satisfied beyond reasonable doubt for the purpose of sentencing [him] that he struck [redacted] with the baseball bat.

   …

   I am not able for sentencing purposes to attribute a particular punch, kick or blow with a weapon to either [redacted] or [the Applicant] during this part of the attack.  However I am satisfied that they were participants in a joint attack involving punching and kicking by the five assailants.

8. The Judge notes that Mr Tuimalatu, in the course of the affray, was himself accidentally stabbed in the back.  Her Honour goes on (GD, p 31) to find that she sentenced

   
   

   Mr Tuimalatu on the basis that he was a participant in the punching and kicking and that he was armed with a baseball bat, but that she was not satisfied beyond reasonable doubt on the evidence at the trial that he struck the principal victim with the bat in the course of the affray, nor that Mr Tuimalatu was aware that a co-accused was armed with a knife at any time before he was stabbed in the back.

9. The Judge did not accept the characterisation that the Applicant went to the house to protect his partner and, while she acknowledged he may not have been involved in the original family dispute, Judge Hampel decided he went there that night as an active participant, and went there armed with a bat which he used to lend support to his partner and her siblings.

10. It is clear to the Tribunal that a direct consequence of Mr Tuimalatu absconding from the trial before sentence meant that his legal representatives did not make any submissions in relation to mitigation or quantum of sentence.  They declined to  continue acting or present submissions (GD, p 38).  Consequently, Her Honour proceeded on the factual basis consistent with the jury’s verdict and her analysis of the case as she understood it was put for Mr Tuimalatu.  Judge Hampel proceeded to sentence, but relevantly said:

    There is no evidence which would permit me to give any weight to specific deterrence, or prospects of rehabilitation, apart from the evidence that I have referred to in relation to the [earlier] convictions, nor is there any evidence that I can take in to account in relation to the effects on him of the hardship to his family caused by the convictions.  Nor is there any basis on the material before me, that very limited material, to temper the weight appropriate having regard to the objective circumstances of the offending, to his moral culpability or general deterrence.

    I consider it appropriate to fix a non-parole Period, although appreciating I am working to a great extent in the vacuum.

11. As the Respondent submitted, Mr Tuimalatu’s conviction for a crime of violence must be, and is, viewed very seriously.

12. Also viewed seriously by the Tribunal is the fact that quite a lengthy sentence of imprisonment of four years and six months was imposed on Mr Tuimalatu.  While it is well established that the Tribunal cannot go behind the findings of a court (see, for example, Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; Minister for Immigration and Multicultural Affairs v Ali (2002) 62 ALD 673), it would seem reasonable to conclude that the sentence might have been somewhat less severe had the presiding judge not been forced by Mr Tuimalatu’s absence to arrive at a sentence in a vacuum, without the benefit of any plea in mitigation.

13. Under paragraph 13.1.1. of the Direction, the Tribunal must also consider Mr Tuimalatu’s ‘other conduct’ in relation to his absconding from the trial.  In this respect, the Tribunal notes that, on his extradition back to Victoria, the Applicant again appeared before Judge Hampel (GD, p 75).  While there was no information before us as to what then occurred, it is relevant to note that his absconding would not appear to have been considered to warrant the imposition of an additional sanction, either in terms of additional prison time or a longer non-parole period.  The National Police Certificate did not disclose any additional penalty.  The Tribunal has carefully considered this question and concludes that, as the Tribunal does not have a penal function, a concomitant of not going behind a finding of a court is that while the absconding was serious, the judicial system decided not to impose any additional penalty, so we must also take that into account in considering the part of the Direction relating to ‘other serious conduct’.

14. In the result, the nature and seriousness of Mr Tuimalatu’s conduct weighs against revocation of the decision to cancel his visa.  It does so, however, to an extent less than the violence involved in his offending and his term of imprisonment might otherwise warrant given, in particular, the context in which his more serious offending occurred.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

15. The Direction requires us to have regard, cumulatively, to the nature of harm to individuals or the Australian community should Mr Tuimalatu engage in further criminal conduct or other serious conduct.  As Justice Mathews, then a Deputy President of the Tribunal, observed in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56; (1999) 28 AAR 431, at [51]: Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending...

16. The Tribunal does not accept

    the Respondent’s submissions that Mr Tuimalatu ‘totally disputes’ Judge Hampel’s findings and does not accept responsibility for the offending of which he has been found guilty.  As it emerged from his oral evidence, Mr Tuimalatu made clear that he accepted the verdict, regretted absconding and realised the consequences of that action, but queried the trial judge’s summary of the events of

    
    

    2 October 2012, events which Her Honour acknowledged were complicated, involving a large number of people.  We do not interpret Mr Tuimalatu cavilling at details of those events as constituting either a total rejection of the judge’s findings or a refusal to accept responsibility.  Indeed, the Applicant has, on the evidence, accepted his culpability and has been well behaved in prison, using his time productively in regard to undertaking courses conducive to his rehabilitation and employability (such as courses in trades, information technology, hospitality and workplace safety).

17. Dr Yoxall’s expert evidence was submitted to inform the Tribunal in regard to an objective risk assessment.  The Tribunal does not give this evidence significant weight.  The score card used by Dr Yoxall to inform her written report contained several errors as to

    
    

    Mr Tuimalatu’s factual circumstances.  These errors might have been the result of a lacuna between her clinical assessment of Mr Tuimalatu and her writing up the score card.  Whatever the cause, however, the result was that a number of concessions and qualifications were made in her oral evidence, concessions and qualifications which directly affected the conclusions expressed in her written report.  Further, drawing attention to these errors seemed to result in an unnecessarily combative reluctance to either accept that there were further errors in other aspects of her approach to the score card, or explain why her approach was appropriate. 

18. The Tribunal concludes that there is some risk of Mr Tuimalatu engaging in further criminal or other serious conduct but not a high risk of his doing so.  In particular, the risk is ameliorated by a number of factors, including that:

    (a)There is no substantial history of violent offending by Mr Tuimalatu;

    (b)His most serious conduct to date was not reflective of any trend, but, rather, occurred in the context of a dispute between members of Mr Tuimalatu’s partner’s family, a family with which his partner is no longer in contact;

    (c)The context in which Mr Tuimalatu’s offending prior to 2012 occurred is likely to differ materially from the one in which he will find himself upon release from prison.  He appears to be in a stable, loving relationship with his partner, one that entails his acceptance of parental responsibilities.

    (d)He has, as mentioned, accepted culpability for his previous conduct and undertaken several courses beneficial to his rehabilitation and employability on release;

    (e)His history since leaving school suggests a preparedness to seek out and maintain employment.

19. Accordingly, this consideration weighs against revoking the mandatory cancellation of

    
    

    Mr Tuimalatu’s visa, but not heavily so.

    Best interest of minor children in Australia affected by the decision (paragraph 13.2)

20. The Direction requires decision-makers to determine whether revocation ‘is in the best interests of the child’ (paragraph 13.2 (1)).  Where there are two or more children, the best interests of the children should be given individual consideration, to the extent that their interests may differ.  The term ‘child’ includes any child (or children) affected by the decision not to revoke the visa cancellation and, hence, in the circumstances, include children of Mr Tuimalatu’s partner. In addressing this consideration, the Tribunal, however, considers only minor children, not Mr Tuimalatu’s oldest daughter or JD, who have passed the age of 18 years old. 

21. In regard to the Applicant’s two sons who live with their mother in Brisbane, M and D, the Tribunal accepts that Mr Tuimalatu has regular (weekly) contact with them and had, since ceasing to reside in Brisbane since 2011 and prior to his incarceration, visited them every three months or so.  However, the Tribunal also notes that Mr Tuimalatu accepted that their mother plays a day to day parental role in their lives and he was unaware whether she had re-partnered.  Given this and given Mr Tuimalatu’s relatively limited parenting role in relation to M and D since 2011, the impact on M and D of cancellation of Mr Tuimalatu’s visa is assessed as adverse but not significantly adverse.  This is especially so because visa cancellation would not appear to affect materially the status quo, given that
    Mr Tuimalatu’s only contact with M and D for the last three and a half years has been by telephone.

22. In regard to LD, the daughter of the Applicant’s partner, the Tribunal accepts
    Mr Tuimalatu’s, Ms Atelemo’s and JD’s evidence that they are close and that he has fulfilled a father-figure role for her.  The Tribunal also notes that LD has had some personal issues for which she seeks and relies on support from Mr Tuimalatu.

23. In regard to O and R, the two children Mr Tuimalatu has with Ms Atelemo, the Tribunal rejects the Respondent’s submission that Mr Tuimalatu has had only ‘very limited’ contact with them.  The at least weekly level of contact with them, corroborated by Ms Atelemo, does not fall to be characterised as very limited.  Moreover, the level of contact does not portray adequately the role Mr Tuimalatu has in O and R’s life.  According to Ms Atelemo, when at home, the topic of conversation with O and R frequently turns to their father.

24. The Tribunal does accept, however, the Respondent’s submission that any trauma being experienced by Mr Tuimalatu’s children (presumably as a result of his physical absence) is directly attributable to his own conduct.  This submission addresses current trauma; it fails to address the likely future impact on Mr Tuimalatu’s children were he to be forced to leave their current country of residence.

25. In relation to LD, O and R, the Tribunal assesses that the  impact of cancellation of Mr Tuimalatu’s visa is likely to be significantly adverse.  LD is of high school age.  She faces either the loss of access to her father figure shortly after the loss of her biological father, or a move, likely to be disruptive to her schooling, to a place in New Zealand that would seem from both Ms Atelemo’s and Mr Tuimalatu’s description to bear the scars of cultural disruption and socio-economic deprivation.  In this respect, Ms Atelemo gave evidence to the effect that any move to New Zealand would need to be to that place given that is where her familial support base is. 

26. O and R would be confronted by the same stark alternative.  While their capacity to cope with, say, a move to New Zealand might be better given their age, this is countervailed by the likely indirect effect on them of their mother enduring additional stress in a context where she already confronts multiple stressors and may exhibit what her psychologist characterises as mixed anxious depressive symptoms (see Dr Butler Wilks’ report, Exhibit A6).

27. The Tribunal was also given some evidence of a range of nephews and nieces of the Applicant and one particular relative, his half-sister’s son, who he said grew up with him as, effectively, a brother but who is no longer a minor.

28. On balance, the Tribunal concludes that the likely effect on all of the minor children would be adverse, with that effect being significantly adverse for three of the children.  This means we weigh this consideration strongly in favour of revoking the mandatory cancellation of the visa.

    Expectations of the Australian community (paragraph 13.3)

29. The Respondent drew the Tribunal’s attention to the decision of Deputy President Walker in Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407, at [40]:

    The community has the right to expect that persons allowed to settle in this country will not make themselves into a public menace and a burden on the criminal justice system and the public purse.

30. The Respondent submitted that Mr Tuimalatu’s failure to adhere in 1999 to an intensive corrections order and, in 2012, to bail conditions reflected a lack of respect (or, indeed, contempt) for Australia’s legal system.  This submission is rejected.  The evidence suggests, and the Tribunal finds that the failure to adhere to the order instead reflected a lack of understanding and maturity by a then young man about the nature and significance of the order, while the non-observance of bail conditions in 2012 was the result of fear and frustration rather than any lack of respect or contempt.

31. The Respondent also referred to Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), at [75], wherein Her Honour said that this part of the Direction is inextricably linked to the other primary consideration of protection of the Australian community and is, in effect, a kind of deeming provision about how the executive government wishes to articulate community expectations.

32. Although the Respondent did not cite this part of Her Honour’s remarks in YNQY, the Tribunal notes that the decision went on to say that, in substance, this consideration is adverse to any applicant.

33. Ms Samuta drew the Tribunal’s attention to the decision of Deputy President Block in Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, at [36]:

    The expectations of the Australian Community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspect of the power under s 501.

34. The Tribunal takes the view that, on the principle that it is axiomatic that applying the Direction involves the exercise of discretion, the weight given to this consideration in each individual case may undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia (see, for example, ReGWSC and Minister for Home Affairs [2018] AATA 4313).

35. The broad approach that should be taken by decision-makers in this primary consideration is supported by the recent decision of Griffith J in DKXY v Minister for Home Affairs [2019] FCA 495 (in turn supporting the broad approach adopted by Senior Member Raif in DKXY v Minister for Home Affairs [2018] AATA 3779), where His Honour said, at [34]

    This does not mean, however, that the AAT fell into jurisdictional error when it described the reasoning in YNQY as binding on it. That is because, the AAT then proceeded to adopt and apply the correct approach to cl 13.1, i.e. the broad approach. As mentioned above, the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant’s circumstances when considering the expectations of the Australian community.

    (Emphasis added.)

1. While the Tribunal understands the principle the Respondent was submitting, the Tribunal further distinguishes Mr Tuimalatu from the Applicant in Le, who was a habitual drug trafficker and burglar with a very long history of criminal offending.  None of those elements is present here.

2. The Tribunal also takes the view that the expectation of a hypothetical member of the Australian community must logically mean a member who is properly apprised of all the details.  The Tribunal concludes that such a member of the community would decry what occurred in October 2012 but may understand the context and nature of the offending and characterise it somewhat differently from a non-citizen initiating an attack, and one who has an extensive history of violent crimes against the person.

3. The community member would also, we conclude, take into account that Mr Tuimalatu has a large family in Australia, several of whom are Australian citizens, and that he has had, in the words of the Respondent, a steady and consistent employment record in this country.  These are relevant factors often absent in non-citizens seeking merits reviews under this section of the Act.

4. The Tribunal concludes that this consideration weighs against revoking the mandatory cancellation of Mr Tuimalatu’s visa but not heavily so.

   Other considerations

   International non-refoulement obligations (paragraph 14.1)

5. Australia’s obligations in regard to non-refoulement relate to this country being a signatory to the 1951 Convention Relating to the Status of Refugees.  The Tribunal may also consider complementary protection, where it is relevant.  The Respondent submitted that, as Mr Tuimalatu is a citizen of New Zealand and the Applicant had made no submissions, this consideration should be assigned no weight.

6. It would appear to the Tribunal that, apart from being a New Zealand citizen, it is likely that being born in Samoa, Mr Tuimalatu is also a citizen of that country.  However, no submissions were made to the Tribunal on this point.

7. The Tribunal notes that while both the Applicant and Ms Atelemo gave evidence about some of the activities of Islander enclaves in Auckland and speculated about the situation in other New Zealand cities, no evidence was presented about any particularised harm that might come to Mr Tuimalatu if he was repatriated to New Zealand. 

8. The Tribunal finds that on the information before the Tribunal this consideration is not engaged in this matter and so weighs neutrally in this assessment.

   Strength, nature and duration of ties (paragraph 14.2)

9. The Direction requires decision-makers to have regard to how long the non-citizen has resided in Australia, and that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to the time the person has spent contributing positively to the Australian community.

10. The Tribunal gives weight to the fact that Mr Tuimalatu has resided in Australia for the greater proportion of his life and all of his adult life.  The Respondent accepts that the Applicant has significant emotional ties to his immediate family in Australia and that it would be very difficult for them emotionally if his visa is not restored.

11. The Minister noted that Mr Tuimalatu would, if deported, be unable to provide direct assistance to his ageing parents in Brisbane, but also that he has two siblings who live in Queensland to whom such responsibilities would fall.  The Tribunal notes the evidence of the treating general practitioner of the Applicant’s parents that both have certain medical conditions and Mr Tuimalatu’s evidence that as the oldest son he has a cultural, as well as familial obligation, to support them.  However, the Tribunal notes that geographically he moved to Victoria some eight years ago and there was little corroborative evidence of what financial or other support he may provide, and certainly his own evidence that he has been unable to provide support since being in prison.

12. The Tribunal notes that the Direction requires decision-makers to give more weight to the time a non-citizen has spent contributing positively to the Australian community.  The Tribunal notes that the Respondent did not contest the evidence that Mr Tuimalatu had, for most of his adult life since leaving school, held sustained and productive employment.  A notable exception to this good record is the period he was at large, having absconded from his trial.  The Tribunal also accepts the evidence that, just prior to the events of October 2012, Mr Tuimalatu had taken concrete steps to establish his own independent business, which is to his credit in terms of contribution to the Australian economy.

13. The Tribunal also notes that Mr Tuimalatu has five Australian citizen children and that his parents and siblings are also Australian citizens.  Evidence was also presented of a nephew who lived with the Applicant as, effectively, a brother and of other nephews and nieces of his extended family who live in Australia.  All of these links demonstrate to the Tribunal’s satisfaction that Mr Tuimalatu objectively has strong ties with Australia.

14. While Mr Tuimalatu’s first offence was at a relatively young age, the National Police Certificate did not illustrate a pattern of serious offending, but did display some undesirable and somewhat anti-social offending at the lower end of the spectrum, until the October 2012 more major offences.

15. The Tribunal also notes the report of Dr Butler Wicks in respect of Ms Atelemo’s mental health and evidence given during the hearing in relation to JD having had a past confronting psychological crisis, which we have taken into account in our assessment.

16. On balance, because of his strong family network in Australia, the Tribunal concludes that this consideration weighs in favour of revoking the mandatory cancellation of
    Mr Tuimalatu’s visa.

    Impact on Australian business interests (paragraph 14.3)

17. The effect on Australian business interests of the revocation of a non-citizen’s visa would generally only be given weight by a decision-maker, under the Direction, if that revocation would significantly compromise the delivery of a major project or service in Australia.  There was no evidence before the Tribunal that this would be the case, so the Tribunal did not consider this consideration further and it weighs neutrally.

    Impact on victims (paragraph 14.4)

18. The Direction requires a decision-maker to explore this other consideration where information is available about the impact of revocation of visa cancellation on victims.  There was no such contemporary information before the Tribunal.  The Tribunal did not contemplate this consideration further.

    Extent of impediments if removed (paragraph 14.5)

19. The Direction requires that we take into account the extent of impediments a person may face if repatriated, taking into account the Applicant’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.

20. While Mr Tuimalatu submitted he suffered from anxiety and some depressive symptoms, there was a paucity of evidence about this.  He otherwise is in good health.  The Direction requires that a decision-maker must consider the extent of impediments that a non-citizen may face in settling and maintaining basic living standards in the context of what is generally available to other citizens of that country. 

21. There was no evidence before us that Mr Tuimalatu would be faced with any language or cultural barriers in New Zealand or Samoa if his visa was not restored.  While he may initially have difficulty in finding work, there were no submissions before the Tribunal that there would be any significant impediments.  The Tribunal finds that this consideration weighs neutrally.

CONCLUSION

1. In considering the question of whether there is ‘another reason’ that the mandatory cancellation of a non-citizen’s visa should be revoked, the Tribunal must, under section 499(2A) of the Act, apply the Direction; though it is not exhaustive.  One primary consideration weighs strongly in favour of setting aside the mandatory cancellation of
   Mr Tuimalatu’s visa; but the other two primary considerations weigh against restoring the visa, but, we find, not strongly against. 

2. The Tribunal heeds the objectives articulated in paragraph 6.1 of the Direction as set out above as to whether it is satisfied that there is another reason, under section 501CA(4)(b)(ii) of the Act, to revoke the cancellation of the visa.

3. The Tribunal concludes that, while the recklessly causing injury and affray offences are objectively serious, they were committed in a certain context of a family dispute.  There is no other history of Mr Tuimalatu acting violently since he was a teenager.  This was a family dispute which spiralled quickly, and badly, out of control.  It was deeply regrettable that the Applicant’s partner (and, therefore, he) got involved in the events of that day and the Tribunal is satisfied that they fully understand that.  It seems to the Tribunal that the behaviour that day was out of character for someone who had generally contributed productively to our Australian community, and has been otherwise a good father, partner and stepfather. 

4. The Tribunal considers that the Applicant has been significantly affected by the cancellation of his visa and the realisation that the behaviour he became involved in that day in 2012 is completely unacceptable in our society.  However, the Tribunal in this instance is satisfied that, in applying the considerations under the Direction, the correct and preferable decision is for the Respondent’s decision to be set aside and for the mandatory cancellation of Mr Tuimalatu’s visa to be revoked.  It should be made clear to the Applicant that any further criminal offending would jeopardise his migration status in this country.

   DECISION

5. The Tribunal sets aside the decision made by the Minister’s delegate on 21 January 2019 refusing to revoke the Applicant’s visa and in substitution a decides that the cancellation of the visa be revoked under section 501CA(4) of the Act.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris, Senior Member C. J. Furnell

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

Associate

Dated: 18 April 2019

Date of hearing:	5 April 2019
Date final submissions received:	11 April 2019
Advocate for the Applicant:	Ms Jennifer Samuta
Solicitors for the Applicant:	Samuta McComber Lawyers
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor