Tumaialu and Minister for Immigration and Border Protection (Migration)

Tumaialu and Minister for Immigration and Border Protection (Migration) [2016] AATA 863 (31 October 2016)

Division

GENERAL DIVISION

File Number(s)

2016/1585

Re

Joe Tumaialu

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Bill Stefaniak AM RFD, Senior Member

Date 31 October 2016

Place Sydney
The decision under review is set aside. The decision cancelling the Applicant’s visa is revoked under s 501CA(4) of the Migration Act 1958.

............................[sgd]............................................
Bill Stefaniak AM RFD, Senior Member
Catchwords
IMMIGRATION – mandatory visa cancellation under section 501CA – discretion to revoke – substantial criminal record – character test not satisfied – discretion to revoke mandatory visa cancellation if another reason – primary and other considerations – serious violent offences – low to medium risk of reoffending – strength, nature and duration of ties - decision set aside
Legislation
Migration Act 1958 ss 499(2), 501(3A), (7), 501CA(4)
Cases
Tauariki and Minister for Immigration and Citizenship [2013] AATA 475
Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 317
Van Rooyen and Minister for Immigration and Border Protection [2016] AATA 165
Secondary Materials
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
31 October 2016
BACKGROUND

The Applicant is a New Zealand citizen. He was born on 20 March 1996 in Samoa, went to New Zealand as a two-year-old, and came to Australia with his mother, brother and his mother's partner on 13 March 2003 when he was six years old.
The Applicant received all his primary education in Australia and completed years 8 to 11 of his secondary education in Australia. He finished school at year 11 and held a job as a farmhand on two farms in Victoria for a little less than a year.
Since his arrival in Australia, the Applicant has travelled to New Zealand on three occasions.
As a result of a fairly concentrated crime spree in the Brisbane area between 6 April and 3 July 2014, which included four serious charges of robbery, the Applicant was sentenced by the District Court to an aggregate term of imprisonment of four years with a non-parole period of 18 months. This sentence was imposed on 2 June 2015.
The Applicant held a Class TY Subclass 444 Special Category (Temporary) visa which was cancelled pursuant to section 501(3A) of the Migration Act 1958 (the Act) on 14 December 2014 and he became an unlawful non-citizen. On 25 December 2015 the Applicant made a request for revocation of the mandatory cancellation decision.
On 18 February 2016, the Minister’s delegate made a decision not to revoke the visa cancellation decision made under section 501(3A) of the Act.
By application dated 30 March 2016, filed with an extension of time application (to which the Respondent consented), the Applicant sought review of the decision of the delegate of the Minister dated 18 February 2016 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act.
The matter was heard before this Tribunal over several days in June and August 2016.
The Respondent contended that the decision not to revoke the original mandatory cancellation of the Applicant’s visa is the correct and/or preferable decision.
THE FACTS
The Applicant attended school, mainly in Queensland but also in Victoria, where he moved with his mother and older brother when he was a teenager.
His schooling was somewhat unremarkable academically and he struggled to an extent. Upon leaving school at the age of 16, he got a job as a farm hand.
At the time of his application, he was 20 years of age and apart from his job as a farmhand, he had not engaged in any other full-time employment. He had however worked part-time in several jobs including as a cleaner.
His mother works as a cleaner and has done so for a number of years. For all but a short period, the Applicant has lived with his brother, his mother and her same-sex partner. In recent years, it appears the Applicant’s brother has been incarcerated in the Victoria. The circumstances surrounding this incarceration were not put before the Tribunal, nor are they relevant to the current proceedings. It is not disputed that the Applicant gets on very well with his mother.
The Applicant was expelled from school in year 10 for hitting a teacher and there were several other incidents that led to him being suspended for short periods of time, including one where he and another boy were fighting.
The Applicant's pattern of criminal conduct appears to have commenced in or around 2014. On 24 January 2014 he was charged with theft from a shop, burglary and failure to answer bail at the Shepparton Children's Court. No conviction was recorded and he entered into a good behaviour bonds and was ordered to pay compensation in the amount of $80.
On 10 April 2014, at the Brisbane Magistrates Court he was charged with unauthorised dealing with shop goods, possess tainted property, assault and failure to appear in accordance with an undertaking. No conviction was recorded, but he was ordered to perform 80 hours community service.
On 5 May 2014, at the Beenleigh Magistrates Court he was charged with three counts of breaching bail conditions and one count of unlawfully use motor vehicle. No conviction was recorded and he was placed on probation for 12 months.
On 8 September 2015, at the same court, he was charged with one count of unlawful use of a motor vehicle, breach of a probation order imposed on 5 May 2014, breach of a community service order imposed on 10 April 2014, three counts of breach of bail, common assault and possess tainted property. He was convicted on each offence, sentenced to a term of imprisonment for two months and fined a total of $2,250.
It should be noted that he was actually serving his main sentence arising from the robbery and other offences committed between April and July of 2014 at the time, and these offences appear to be a consolidation of all outstanding matters.
On 2 June 2015, the Applicant appeared before the Beenleigh District Court in relation to a number of more serious offences committed between 6 April 2014 and 3 July 2014 namely, one count of robbery in company, two counts of robbery in company with actual violence, one count of armed robbery in company, seven counts of burglary and commit indictable offence, two counts of attempted to enter dwelling and commit indictable offence, one count of enter premises and commit indictable offence, two counts of unlawfully use a motor vehicle, two counts of breach of bail, one count of dishonestly making off without paying the petrol, one count of contravene a directional requirement and seven counts of causing wilful damage without consent and thereby causing loss of $250 or less (graffiti of public property, namely railway stations).
In relation to the four counts of robbery in company, the seven counts of burglary the attempt to enter dwelling and enter premises and commit an indictable offence and the unlawfully use a motor vehicle, the Applicant was found guilty and sentenced to an aggregate term of imprisonment of four years with a non-parole period of 18 months.
As a result of his sentence of imprisonment, upon having his visa revoked and upon his release and completing his non-parole period of 18 months, the Applicant was placed in detention at Villawood, where he remains to this day.
The issue for the Tribunal to consider is whether, in the circumstances of this case, the discretion in section 501CA(4) should be exercised in favour of revoking the cancellation of the Applicant’s visa.
The Tribunal will need to determine on the facts whether it is satisfied that:
(a)the Applicant passes the character test as defined in section 501; or
(b)there is another reason why the cancellation decision should be revoked.
Neither party submits that the Applicant can pass the character test due to his substantial criminal record, namely that he has been sentenced to a term of imprisonment of 12 months or more. The Applicant does not pass the character test under section 501(6). I do not need to go any further on this point.
Whether there is another reason is something this Tribunal has to decide and in doing so the exercise of the discretion in section 501CA(4) of the Act must be carried out in accordance with any written directions under the Act – see section 499(2A). Accordingly, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction), must be complied with.
The relevant clauses of the Direction are as follows:
6.2 General Guidance
(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 non-citizens is unacceptable.
(2) In order to effectively protect the Australian community from harm and to maintain integrity and public confidence in the character assessment processes decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and B, while factors that must be considered in making a revocation are in Part C.
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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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.
SECTION 2 - EXERCISING THE DISCRETION
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision maker:
…
(b) Must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizens visa will be revoked.
8. Taking the relevant considerations into account
…
(2) In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) 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.
(4) Primary considerations should generally be given greater weight than other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part C of the Direction outlines the considerations for revocation requests:
13. Primary considerations – revocation requests
(1)Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister 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.
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
13.1Protection of the Australian community
(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 noncitizens 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.
13.1.1   The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non– citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principal that without limiting the range of offences that must be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeat offending;
(f)Whether the non-citizen has provided false or misleading information to the         department, including by not disclosing prior criminal offending;
(g)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);
(h)Where the non-citizen is in Australia, that a crime committed whilst the non-citizen was in Immigration detention, during an escape from immigration detention; or after the non- citizen escaped, but before the non-citizen was taken into Immigration detention again is serious, as is an offence against section 197A of the Act.
13.1.2   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
13.3Expectations of the Australian community
(1)The Australian community expect non-citizens to obey Australian laws whilst in Australia. Where a non-citizen has breached or if there is an unacceptable risk that they will breach this trust or where they have been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa revocation. Non –revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the governments views in this respect.
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account. These considerations 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
THE EVIDENCE
The Respondent pointed in their Statement of Facts, Issues and Contentions to the following:
·The Applicant didn't dispute the crimes he committed, notwithstanding that he contended that the discretion should be exercised in his favour because at the time of the offences he was “just a kid and was going through a bad time in his life". Since committing the offences he stated – “I have matured a lot and changed for the better. With no chance of relapse, I'm certain I will never return to prison and will have a bright future”. The Applicant further stated he had next to no family in New Zealand and if he was forced to return there he would be likely to end up “homeless and could be forced back into a life of crime. That would be devastating and will have a big impact on [him]".
·The Respondent further contended that no additional evidence had been filed by the Applicant in support of the application, despite being invited by Tribunal to do so.

The Respondent conceded that the Applicant had claimed his family were providing him with support but stated that with no supporting evidence, little weight should be given to the contention.
The Respondent contended that there had been no evidence advanced to support the Applicant’s claim he had been rehabilitated and that there was nothing to suggest that he had participated in treatment or completed rehabilitation programs in prison or indeed, whilst in immigration detention.
The Respondent contended that he has not been released into the community since sentencing and there has been no opportunity to test his claims of rehabilitation.
The Applicant contended that he was not afforded the time to present evidence as to his rehabilitation which included letters of support from family and friends and that he was faced with a decision made in less than two months of his revocation request (as opposed to the current processing time of 12 months from the date of entering detention) that he had limited access to professional assistance, such as a migration agent or solicitor and that he had difficulty obtaining and gathering supporting documents whilst in detention.
Several letters in support of the Applicant were lodged with the Tribunal on 20 May 2016, including from:
·Ruta Tumaialu, the Applicant’s mother, dated 2 March 2016;
·Mr R. Brazel, the Applicant’s mother’s landlord, dated 10 March 2016;
·Pastor Onofa Sepelini, dated 4 February 2016;
·Alastair Hilton, friend of the Applicant, dated 3 May 2016;
·Ailua Faalava, a relative of the Applicant, dated 3 March 2016;
·Litisone Ah Sam, a relative of the Applicant, dated 3 March 2016; and
·Rae Burton, prison team coordinator, received 20 May 2016.
The letter from the Applicant's mother emphasised there was a lack of family members in New Zealand and that most of the family members now resided in Australia or Samoa. She did not feel that sending the Applicant back to New Zealand would help him reform as there was no support for him there. She felt he needed as much family support and supervision as possible to become a good citizen and member of society.
She said she had spoken to him many times and that he was very sorry for his actions. He wanted to start a new life and make serious changes. He enjoyed going to church and readily attended the church at Logan and that he had lost his way and that led him into trouble.
She stated her son was keen to go back to church and help out with the youth group and be an example of what can happen “when you go down a dark path". She stated that he had a job waiting for him in a fitness centre and that he was very interested in fitness and exercise and loves helping people reach their goals.
She strongly felt he could change his life and she concluded by stating she would provide him with every aspect of support, guidance, accountability and love that she possibly could. She felt with continued support “he will grow to be a loving and caring adult who would make us proud”. She stated that he expressed remorse for what he had done and was taking all the right steps to correct his life.
Mrs Tumaialu’s landlord, Mr Brazel indicated that all of this drama was causing Mrs Tumaialu mental and emotional instability. He stated he would help both her and her son any way he could.
The letter from Pastor Onofa Sepelini indicated that he felt the Applicant was sincerely remorseful and to assist with his transition, the Pastor had put in place systems and processes to enable the Applicant to engage in the community and to serve alongside youth groups and his church, namely every Wednesday and Friday evening and every second Saturday afternoon.
He further offered to counsel the Applicant for at least eight hours per week to ensure that his new journey was being maintained and monitored. The Pastor would further do monthly reviews to assist with accurate monitoring. The Pastor felt that these programs would transform “[the Applicant] into the man he is destined to be".
The e-mail from Mr Hilton indicated that he had known the Applicant for a few years and that “he would never in 1 million years would have thought he would get into this situation he’s got himself into”. He stated he was found the Applicant to be a happy-go-lucky young fellow, always kind hearted, sporty and never afraid to help no matter what the circumstances. He went on to add that when the Applicant was staying with his mother, he was trying is best to help his mother out and he also would work a few days with Mr Hilton to help. He stated it would be a very difficult time and loss for his family and friends to see the Applicant go to New Zealand.
Ms Ailua Faalava, the Applicant’s aunty, said she had always found the Applicant to be dependable, reliable, conscientious, and a peace-loving young man. She stated he was extremely dedicated to his family, especially his mother and that if he was allowed to stay in Australia, it would be a great opportunity for him to have a fresh start in life, gain employment and have a stronger relationship with his mother – “who really needs his support".
The letter from Litisone Ah Sam indicated that he/she was a relative of the Applicant, and would give him support and watch over him.
Finally, the letter from Ms Burton of Pacific Connect and Support Inc indicated that her organisation was a non-government organisation which involved participation by community members, stakeholders and professionals with Pacific island and non-Pacific Island heritage. The organisation endeavoured to understand and appreciate the culture and traditions and customs of all the people of the Pacific region.
At the Southern Queensland Correctional Centre (SQCC) they facilitated a Pacific Island Pathways program. She believed this was significant to the positive growth and well-being of offenders assisting them to recognise and strengthen their identity and promote participation in courses and training, undertake programs to address their offending behaviour and establish links between inmates, families and the wider community for the reintegration of offenders upon release.
The organisation offered culturally appropriate programs and support services to individuals and families and they conducted weekly professional visits supporting inmates at the detention centre. They provided support visits for people who had had their visas cancelled.
She stated that the organisation had provided support to the Applicant since his incarceration and that he showed immense leadership and courage throughout his time at SQCC.
She went on to say that he would often ask her questions and encourage his peers to do the same and created a great atmosphere for learning. She had watched him participate and indeed lead in every facet of the program, notably through cultural dance in the lead-up to the annual Polynesia Day celebrations.
She went on to say that the Applicant “causes others to embrace the content through his relentless quest for knowledge and understanding". She regarded his contribution and communication to other members within the group as invaluable and stated that “we are very proud of the ground he has covered in the time we have known him and it has been a pleasure to see the development in this young man”. She concluded by saying that “we are committed to continuing the journey with him upon his release and will we will gladly be there to give him as much support as is necessary for him".
EVIDENCE GIVEN AT THE HEARING
Both Ms Burton and other members of this organisation who gave oral evidence before the Tribunal all expressed similar sentiments committed to supporting the Applicant once a week.
The Applicant's mother also gave evidence at the hearing. His mother reiterated what she said in her letter and stated further that the Applicant had always been good to her, that he would go to work with her and that he would help her with the cleaning and washing at home.
She stated he had not really discussed his offending history with her.
Ms Burton stated that she had watched his development and felt he had become a very warm person and that he never missed a session when he was in prison. She believed he had shown remorse and that he really wanted to make a fresh start.
She said he was making plans for what he would do if he was released and that he really wanted to reach out to young kids who might have taken a similar path to him.
She felt there would be no support for him in New Zealand and feared for him going back there.
She felt no one could say if he was likely to reoffend but that he was far less likely to reoffend if he had good support. She stated that her experience was that when “kids like [the Applicant] engage in our programs they are less likely to reoffend”. She thought he would be quite an asset to society.
She stated the sessions lasted three hours and it was a one-on-one. It was centred around arts, performing arts and events such as Polynesia Day. It helped people engage with each other.
She stated the Applicant led the dancing group and encouraged other people to dance and he also took on other people's culture. If anyone in the group was dropping out, the Applicant would do one-on-one teaching with them and he’d talk and pray with them.
She stated further that the Applicant was soft and tender with the transgender persons and mindful of how they felt.
She stated that he had been involved in the program for close to a year.
She stated that she started the program two and a half years ago and that a number of attendees had been successful in remaining in Australia and that they had done well.
She stated two in particular who had been allowed to stay had been involved in serious crimes; one involved in a violent grievous bodily harm or assault with a weapon.
I asked a question in relation to whether anyone in the program had become a recidivist and she stated only one out of the 25 to 30 people she had dealt with in the program had become a recidivist. This person had a long history of abuse.
Under cross-examination she said it was hard to break in and get the trust of an islander offender and that connecting with the family atmosphere helped. Developing trusting connections helped. It took time. She thought there would be not much support in New Zealand and though there were similar programs, it's hard to break in because of the trust of the family atmosphere.
A number of other persons who had not made statements gave evidence by phone.
The Respondent objected to the evidence but the objection was ultimately withdrawn when it was pointed out that the relevant section that would support the Respondent's contention had, it seems, not been debated and passed into law yet. Accordingly the following individuals were allowed to give evidence despite the fact that they had not made statements.
The Manager of the Pacific Connect program, Alex Roveda, who indicated that during the time he'd spent with the Applicant, he observed that he was a polite and respectful young man. Mr Roveda stated that he was not part of the Pacific Island community. He said that he could not say that he regarded every one participating in the program highly but he did “regard [the Applicant] highly”.
He stated he didn't dwell on the past but looked to the future and was looking towards a successful integration of the Applicant back into the community. He felt it unlikely that the Applicant would reoffend and stated “we are here to continue support after they leave detention". He stated he committed himself to “supporting and helping [the Applicant]” and that “[the Applicant] had been really involved in the program”.
Ms Faalava gave further evidence indicating that her young children looked up to the Applicant, that he went to church with his mother every week and that he helped the young ones stay out of trouble and further that he translated for his mother. She also volunteered that the Applicant’s mother had moved her family away from New Zealand to get away from certain family members who “were problems”.
The pastor's wife Mrs Sepelini gave evidence and stated that “before [the Applicant] got locked up he went to a different church”. She confirmed her husband’s church had been helping out his mother financially and that members of the church would take Mrs Tumaialu to church.
Vaga Patau, aged 26, stated he was the Applicant’s cousin. He was also involved in the church group and could go and live with him if need be. He would get him on course and stated – “I'd be his backbone. I would get him back to be the person I used to turn to”.
Stacey Wernet gave evidence that she was also involved in the program and had been there one and a half years. Stacey saw the Applicant every Friday. When she first met him he was quite shy. When she got to know him, he showed good leadership in gathering the group, telling them what to do, supporting them, spending extra time with the dancers, and talking to the volunteers.
She confirmed he opened up to some of her colleagues and she concluded that in her opinion, if he had the support around him, it was highly unlikely he would reoffend.
Brodie Nolan, a support worker from Allied Health Assistance, stated in his evidence that “[the Applicant] was smart enough to see doing the lawful thing was the best way to go” and felt the older the Applicant became, the more his maturity would develop.
Mr Nolan noticed that the persons the Applicant was hanging out with in prison were the mature reformed prisoners rather than the troublemakers. He went on to say that the Applicant needed positive influences in his life and he will have these through his support networks. He had seen the Applicant mentoring other people in the prison and he noticed that Joe had an artistic side.
Mr Nolan stated “[the Applicant] didn't hang out with the wrong sort. He made a really joyful and respectful entrance with our group and loved it when we came in”. He also told the Tribunal that he (Mr Nolan) was not a pacific islander and that the prison was a light security prison.
Finally the Applicant gave evidence to the Tribunal. The Applicant stated that at the time of his crime spree, he had fallen out with his girlfriend, he had no job and he was living rough. He had been with his girlfriend for quite some time prior to them breaking up. He went on to say, “things happened that shouldn't have”. He stated he had no support, was involved in taking marijuana and ice and he needed money to support his habit at the time.
Whilst he felt good that he had money, he didn't feel good morally and he indicated that his actions did trouble him.
He realised he had hit rock bottom when he was sentenced to jail and so he decided to rehabilitate himself. He stated he talked to some of his peers in jail who told him that “no one would want to do this to the rest of your life”.
He felt very guilty as his mother needed him and he was not there for her and this helped him realise what a fool he had been.
He stated that he did have a girlfriend at the moment and he wanted to settle down and to live with his mother. He had few relatives in New Zealand and those he had lived in Auckland and were gang members and that he was scared that he would fall into bad habits again if he caught up with them.
The Applicant said he would be a cleaner at the gym for a while and hopefully become a personal trainer. He wanted to be there for his mother and his little cousins. He particularly wanted to get into work where he could help youth. He wanted to stay home and keep out of trouble.
Under cross-examination he indicated that he felt depressed and was in a bad place when he was in prison and he initially kept his problems to him He stated that over time he had become more prepared to talk about his problems.
He said that only he could control who he associates with and that he wanted to do what he could to help people. He stated that he did not want his mother to go to New Zealand if he was deported but it would be her choice.
He stated he did a 12-week course in prison in relation to substance-abuse. He stated that he was off drugs now and would not use them again. He also stated he had been on a waiting list to do a course in first aid and get his white card.
He accepted that the four robberies were very serious and that he did not want to go back to a life of crime.
He was a reasonably talented rugby league player in his junior days playing with the Bankstown Club from the Under 7s to the under 12s. In Victoria he had played Australian Rules. When the family returned to NSW, he was with the Bulldogs under 16 training squad and he indicated he hoped to play rugby league again.
Ultimately he liked the idea of being an architect is in the design work.
He was asked further questions including “if you had an emotional ‘low’ in the future, would you lose your normal sense of self and turn back to drugs?” to which he answered that he wouldn't because his support group now helps him and he takes their advice and being in the church group also helps.
It was suggested that he had some mental problems mainly clinical depression and he said he didn’t think he did and didn’t think he needed medical help. This indicated to me that in relation to several of his problems he was still in some denial.
ADJOURNMENT FOR FURTHER EVIDENCE
Following the hearing dates in June, the Tribunal requested that the Applicant be assessed by a clinical psychologist, with a view to getting some idea of the Applicant’s likelihood of reoffending and if so, in what capacity.
The matter was accordingly put over to enable this to occur and an order was made for both the Applicant and the Respondent to have their respective clinical psychologists examine the Applicant, prepare reports, and be available to give further evidence before the Tribunal.
The Applicant’s representative subsequently advised the Tribunal that they were unable to get a pro-bono clinical psychologist assessment. In substitution, a report from a qualified professor was provided, which is of limited assistance, as the professor did not see or examine the Applicant.
The Respondent arranged for Dr Anna Farrar, forensic psychologist and psychiatrist of to examine the Applicant. This assessment was undertaken on 19 July 2016. Following this, Dr Farrar provided a report dated 2 August 2016, and also gave evidence at the resumed hearing in August.
I would say from the outset that I found Dr Farrar's report a very fair one and she gave evidence in a very fair, open, frank and professional manner. She had also considered all the relevant documents that had been sent to her before her prior to her clinical assessment of the Applicant.
She stated in her report that there appeared to be no issues with the Applicant in Villawood and as the Applicant told her – “I've been keeping my head down” and “I know what to do”.
The Applicant also told her he attended church each week in Villawood and was part of the church group there and further, that he was in a relationship with his girlfriend of several months; he spoke to her every day and she visited him once a week.
He spoke to his mother every second day and also had contact with other family members (aunts, uncles, and cousins). He indicated that his relatives were “chipping in” to help pay for an immigration lawyer to assist him.
He also had weekly phone contact with the Pacific Island support organisation in Queensland that he had been involved with whilst in prison.
When he was first detained in Villawood, he had on occasions felt suicidal, but he no longer had any suicidal ideation.
He further told Dr Farrar that he did not know his father. He admitted to having a fight and being suspended from Shepparton High School and said that he first worked at a tomato farm for two months and then at a chicken farm in Victoria. This work ceased when he and his mother moved back to Sydney. He stated that he had also commenced a Certificate 3 for a forklift licence in Queensland prior to being incarcerated.

The Applicant also indicated that the first time he became aware that he didn't have Australian citizenship was when he was told he was going to be deported. He had assumed his mother had arranged citizenship for him.
The Applicant indicated that he first met his current girlfriend five years ago. She was an Australian citizen, worked in a clothing store and lived with her parents. He said that it was a serious relationship and that they had talked about marriage.
Dr Farrar noted that Dr Hatzipetrou in his pre-sentence report dated 21 April 2015 had stated that the Applicant had been ejected from home and sent to Samoa and that there had been incidences of rule/ violating behaviours in primary school and that he required a behavioural support program throughout school. Further, that he had learning difficulties, had a short attention span and was restless.
The Applicant stated he had never been prescribed antipsychotic medication before, although he did indicate he suffered from depression after the breakup of his first romantic relationship when he was 17. He told Dr Farrar he was fairly low at the time, had low self-esteem, had lost weight and that these symptoms lasted three months until his arrest.
Dr Hatzipetrou also mentioned that the Applicant drank alcohol and used cannabis and ice prior to his incarceration.
The Applicant denied any misconduct whilst in custody and the Respondent has not alleged any. Drug testing was negative.
The Applicant told Dr Farrar that if he could stay in Australia he would move to Logan in Queensland, where his mother lives and that he was subject to parole conditions until 2019. He indicated his parole conditions stated he had to live with his mother and he felt that the parole conditions would also help him stay out of trouble.
He confirmed to Dr Farrar similar comments about family members and full-time employment opportunities as he stated in evidence before the Tribunal.
He further stated that his mother's relatives in New Zealand had become estranged from his mother as a result of her same-sex relationship, which the Applicant indicated he had no problems with and was quite accepting of as it made his mother happy.
Dr Farrar’s assessment, as indicated in her report, concluded that the Applicant did not report or present with any symptoms or signs of a psychotic disorder or mood disorder. He was polite, his effect was reactive and his mood normal.
Dr Farrar was of the opinion that the Applicant suffered from psychotic symptoms in the context of his ice addiction but did not meet the threshold for an ice induced psychotic disorder. She went on to say that as a result of learning difficulties and support programs during school, that the evidence was suggestive of an underlying intellectual disability. His assessment in July was consistent with low average or low intellectual function although that was not formally tested. Further testing would be needed to confirm any presence of intellectual disability.
Whilst the Applicant satisfied the criteria for a conduct disorder as a result of antisocial behaviour and rule breaking at school and as a result of his contact with the criminal justice system, it was impossible to determine whether he had an antisocial personality disorder in the absence of any documentation of rule violations or antisocial activity whilst in custody or detention.
Specific violent attitudes were not obtained in history from the Applicant but the schedule of facts suggested some violent attitudes voiced to victims during the Applicant's offending.
Dr Farrar noted the Applicant's history of breach of bail and breach of parole offences but indicated that he did not have a current mental disorder and didn't require any specific mental health treatment. She felt he was minimising his substance abuse history and indicated that there were no records available whilst he was in detention to confirm the presence or absence of any current violent ideation or intent.
Dr Farrar reported the Applicant appeared to be coping well in detention and wasn't suffering from stress, was maintaining exercise, was in good physical health along with maintaining relationships with his family and girlfriend. She stated it was unclear what exact effect a move out of detention either in Australia or to New Zealand, would have on him.
RISK OF FUTURE VIOLENCE
Dr Farrar stated the Applicant had a moderate loading of historical scale risk items, a low loading of clinical scale risk items and a low to moderate loading of risk management scale items according to the Historical Clinical Risk Management – 20 (Version 3). This would place the Applicant in a group of offenders with a low to moderate risk of future violence.
If the Applicant were to be required to leave Australia and returned to New Zealand his risk of future violence may increase. A move to New Zealand would not change his historical risk management items.
Dr Farrar said it was difficult in making a detailed assessment due to the fact that she only had the Applicant's clinical presentation to her and his self-reporting to go on as there was an absence of collateral history from his service providers at Villawood and that she did not have confirmation about accommodation and employment options in Logan.
She went on to say that the Applicant’s claims of rehabilitation were largely untested because of his current highly-structured and contained environment where his basic needs are met and where he is restricted from access to such things like alcohol and drugs.
Dr Farrar noted the positive things in relation to the Applicant such as: following the rules in Villawood and whilst in custody, his good health physically and mentally, his strong desire to remain in Australia and maintain his strong family and personal relationships, the fact that he had completed a drug and alcohol program and that Pacific Connect and support group was there to help him. She also noted that the above named group indicated he showed leadership and encouraged his peers whilst he was in custody.
The issues that concerned her were his history of offending as an adolescent child and adult, his history of antisocial behaviour as a child and adolescent, his history of conduct disorder, substance abuse and the fact that he had no contact with his father and that there had been frequent moves disruption of schooling and social activities, plus his limited work experience and his possible intellectual disability.
The fact that he still minimised his involvement and responsibility in the previous offending and the lack of acknowledgement of the victims of his crimes was also problematic.
She noted further that he had not engaged in any violent offenders programs whilst in custody, but noted that he may not have been eligible and they might not have been available to him at any rate.
In summary the report stated that he combined a combination of positive and negative prognostic factors in relation to his rehabilitation and community integration.
During the hearing, Dr Farrar was asked what ‘low to medium risk’ meant. She indicated that a scale had been used on the basis of a 1 to 5 rating, as follows:
1.low risk of reoffending;
2.low to moderate risk;
3.moderate risk;
4.moderate to high risk; and
5.high risk.
The Applicant was rated a 2. Dr Farrar indicated that having a support network would certainly reduce the Applicant’s risk of reoffending, but at the end of the day, this was one factor in many. Other factors included prospects for employment, prospects of accommodation and prospects for treatment including psychiatric treatment.
In cross-examination, Dr Farrar stated that she would equate a low risk (1) to the category one of the cancellation (of visa) scale which was “minimal and remote risk”.
Dr Farrar was asked whether the Department’s intended deportation, and the Applicant’s desire to remain in Australia, amounted to a deterrent that would weigh heavily on him in terms of him not reoffending. Dr Farrar agreed that this might well reduce the chances of recidivism.
Dr Farrar further stated that there was an old scale also used, from 0 to 30. Zero being no risk and 30 being a very high risk. She rated him as either 10 to 12 or 10 to 15.
Dr Farrar further reported the Applicant's positives as being no mood disorder, no substance abuse at present, regular contact with family members, in a serious relationship, support in the community if released and accommodation in Queensland if he remained in Australia. Negative was multiple charges, met the criteria of the conduct disorder as an adolescent, alcohol and drug use, traumatic experiences as a child (did not know father and the moves disrupted schooling), limited employment history, possible intellectual disability, issues around offending and victims, namely, he didn't really want to discuss it and did not seem to really acknowledge the effect of his crimes on his victims and tended to underplay his involvement.
Dr Farrar thought it was important that people do accept what they did, but maybe 50 per cent of offenders tend to minimise it.
In answer to further questioning, Dr Farrar confirmed that the Applicant was not the leader of his gang, and on a positive note, that he had showed leadership and was helping others with jobs and in the courses he did.
Dr Farrar felt he was unlikely to seek treatment and that could lead to future issues if he was mentally unwell and there was a similar theme in his health records.
She assessed him as having a borderline IQ, with the likelihood of being somewhere between 70 and 80, the average being 90 to 110.
When I asked Dr Farrar what most prisoners showed in terms of likelihood of reoffending, she stated the normal range of prisoners was anything between low to medium to medium to high. She did confirm if he was released and did have good support networks and employment and was not on drugs and alcohol then there certainly would be a lesser risk of him offending.
I finished by asking the doctor were he to be released back into the community in Australia and were he to reoffend, what type of offences would he most likely commit.
The doctor indicated the offences would most likely be very similar to what he had been jailed for in the first place- threatening people and taking their property, especially if he was back on alcohol and drugs.
Dr Farrar concluded her evidence by volunteering that the Applicant was not a crime leader but a foot soldier.
DISCUSSION
In many cases, when one looks at the law and applies it to the fact situation, the result is often pretty clear. At a brief glance, the fact that this young man with his drug and substance abuse problems at the time, committed a significant crime spree in company with other young men, although there were no serious injuries incurred by the victims, by itself would indicate the decision maker was correct in cancelling the visa.
The sentencing judge had some very comprehensive information before him including Dr Hatzipetrou's report and details of each offence. The offences were committed to obtain money to buy drugs, cannabis and ice, and alcohol. It was only apprehension by the police at a relatively early stage that stopped further offences occurring, which undoubtedly in my view would have occurred had the Applicant and his colleagues not been apprehended.
I am particularly concerned in relation to the four robbery offences and if anything, I am most concerned with the incident of the Applicant dragging a person out of a car, punching him five or six times and taking the car.
On the other side of the equation is the fact that whilst the Applicant is still in some denial as to the effect of his transgressions and the impact they would have had on his victims, he certainly has shown some remorse and indeed some growing maturity by not associating himself with bad elements whilst in prison.
There is no evidence of the Applicant breaching any rules or showing fits of temper and either verbally or physically abusing any persons in prison. I assume that if there were any incidents of bad behaviour, they would have been reported and brought to the attention of the Tribunal. Such incidents are important in considering whether to change the decision to revoke a visa.
Whilst it appears the Applicant may have been able to do some further courses whilst incarcerated. He has done a substance abuse course and commenced a course for a first aid certificate and white card. There is evidence which indicates that other courses simply may not have been available to him to do for whatever reason.
I am not surprised that the Applicant was granted parole in that, to all intents and purposes, he seems to have been a model prisoner.
The reports of Ms Burton and the Islander support group are glowing and weigh in his favour as does their continuing availability to support the Applicant on a weekly basis upon release.
The Applicant’s family support network, especially his mother who he has to stay with as a condition of parole, is also in his favour as is the very comprehensive and detailed support his local pastor is going to give him, which will certainly occupy a considerable amount of his time.
Between the church and the islanders support group, he has approximately four days out of seven pretty well covered with activities that are beneficial to him and positive. Then of course we have the fact that he seems to have part-time employment which hopefully will grow into full-time employment.
Were this a parole hearing there would be absolutely no difficulty with him getting parole and as I indicated to the parties’ representatives during the hearing, both of whom seemed to agree, that if there was a similar provision available to the Tribunal in these types of matters similar to what is available to a court in criminal matters by way of a “Griffith’s Bond” (i.e where the court adjourns a sentencing proceedings for 3, 6 or even 12 months to see how the prisoner goes out in the community) – then that is something that I would do in this case.
In the criminal law and indeed in other not totally dissimilar types of situations in other areas of the law (such as adjourning eviction proceedings against a public housing tenant who owes an amount of rent, to give that tenant the chance to show that he/she can regularly and consistently maintain payments), the cases show that the party afforded the opportunity will either reoffend (or in the case of the housing tenant not meet his obligations) in which case it becomes a simple matter of jailing the offender or in eviction cases, proceeding with the eviction.
Unfortunately that type of option is not available to the Tribunal for section 501 matters.
I hasten to add, Griffith’s bonds and eviction adjournments are only used sparingly. In most instances the situation is much more clear cut.
The Respondent correctly states that any rehabilitation the Applicant has undertaken has not been tested in the community because he is still incarcerated. It can’t be, however, until he is released back into the community, so it’s a catch 22 situation. My above suggestion of adjourning the hearing of a matter such as this and releasing the Applicant for the period of the adjournment from custody and detention would alleviate this problem.
Perhaps that is something that the Respondent may wish to take up with the relevant authorities.
RELEVANT CASE LAW
As the Respondent submitted, there were no cases directly on point. I did however, find three cases that were of some assistance.
The case of Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 317, involved a Pacific Islander, not much older than the Applicant here, who came to Australia as a nine-year-old and who had committed on three separate and very distinct occasions violent crimes. The first two crimes were in 2012 and some two years later, two further violent crimes which involved “king hitting” or in more recent parlance, using a “coward's punch” to fell two unsuspecting male victims, causing a fractured cheek and eye socket to one victim and broken teeth to the other.
There was a third violent incident that occurred whilst the applicant was in custody which involved a low-level assault during a scuffle with a detention officer over a mobile phone, as well as several incidents of verbal abuse of public officials whilst in prison and detention.
These are serious offences and the circumstances surrounding them outweighed any other mitigating circumstances and the decision of the tribunal was to affirm the decision not to revoke the applicant’s visa.
In many ways this was a similar case, except for the fact that in the Applicant’s case, the actual violent offences did not involve serious injury, were all within a shorter period of time and there is no evidence of any aggressive or violent behaviour of any kind whilst he has been in custody and detention.
In Tuimaseve, unlike the present case, the applicant had undergone anger management courses, albeit they obviously did not help him very much. Like the Applicant in this matter, Mr Tuimaseve was a young boy when he came to Australia.
In Van Rooyen and Minister for Immigration and Border Protection [2016] AATA 165, the Applicant came to Australia as an adult in 2010, suffered a business failure, turned to drugs and illegally obtained $27,000 by fraud to pay for his habit. Whilst it could not be said he would never be tempted by drugs again, it was noted that his crime was not one of violence that he had good prospects in Australia including employment and would be able to make restitution.
In Tauariki and Minister for Immigration and Citizenship [2013] AATA 475, the applicant committed a number of assaults upon his long-term partner. In this instance, after great deliberation, the Tribunal allowed him to remain in Australia because of strong representations from his partner who stated that they had finally got married and that she would terminate her relationship with him if ever reoffended. There were also children involved and the children really loved him greatly and were of a relatively young age. On that basis the decision to revoke the Visa was set aside and substituted.
APPLYING THE LAW
As mentioned previously, when considering whether to revoke the cancellation decision, I am required under s 499(2) of the Act to have regard to the guidance contained in the Direction. In the present case, the applicable part of the Direction is Part C.
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
I would further find that the decision of the delegate of the Minister for Immigration and Border Protection on the evidence he had before him was the logical and correct decision at that point in time.
Whilst the Applicant’s extensive criminal history was accumulated in a very short period of time – in that his first conviction was in January 2014 at the Shepparton Children's Court and the majority of his offences and the four robberies all occurred between 6 April 2014 and 7 July 2014 and he has been in custody effectively from July 2014, they are very serious and indicated a total disregard for others.
I also note that whilst the Applicant did not appear to be the instigator of any of the offences (apart from the assault and robbery when he dragged a 42-year-old man from his vehicle, hit him 5 or 6 times and then stole his car) he was an active member of a gang that committed offences that in some instances clearly terrified victims.
The other observations I take into consideration in applying the facts to the law are the following:
(i)the Applicant is still in denial to an extent in relation to the seriousness of his conduct and is still trying to downplay some of the incidents.
(ii)I would not agree necessarily with Dr Farrar as to the dislocation that occurred during the Applicant’s childhood years because of the various moves, as causing significant problems, nor that he lacked a father figure.

There actually appeared to be very little evidence to indicate that the various moves or lack of a father figure in any way attributed to any antisocial or criminal behaviour. He did not volunteer any problems with those moves or the lack of a father as a reason for his behaviour.
Nor did he volunteer the surprise he had as a young boy in finding out that his mother was in a same-sex relationship. Apart from causing him some confusion, he seemed to get over that and accept it. He certainly accepts it now and appears very supportive of same sex and transgender people.
Whilst it is generally accept as desirable for a boy to have a father or a father figure and whilst a series of moves away from one's familiar environment can cause some people problems there are many well-adjusted adults who grew up that way and have no problems. At any rate there is any evidence in my view to back that contention.
(i)I am concerned in relation to his behavioural problems at school which culminated in him hitting a teacher in year 10 and being expelled from the school. It is also obvious that he did have a number of learning difficulties at school.
(ii)I did pay particular attention to the fact that the Applicant is keen on becoming a personal trainer and that he has some talent in sport. To be in a training squad with the under 16 Bulldogs a major ARL club is a not insignificant feat and I was impressed that he expressed a desire that whatever happened in this case he would pursue his interest in rugby league and sport further.
(iii)I paid particular attention in trying to gauge his attitude during the hearing. He seemed to answer questions truthfully but not in any great detail and certainly did not want to open up or volunteer a lot of information in relation to what he did.
The Applicant appeared distant and a little bit unconnected to the proceedings. Despite this he did appear genuine in his concern for his mother and I got the impression he was genuine in wanting to make a decent go of life. He was not a very communicative type of person, but then again, this isn’t an uncommon feature in the younger generation.
I was impressed with two factors. Firstly the fact that he had not got into any trouble whilst in prison and whilst in detention. There was not so much as a hint of him being difficult, swearing or raising his voice to staff, let alone any allegations that he physically confronted staff or assaulted staff. He appeared to have been a very well-behaved prisoner.
Secondly, the amount of support he would have in the community were he to be released back into the Australian community was impressive. I have no reason to doubt the evidence of Ms Burton and the other workers from the Queensland Islander support group, nor that of the Pastor.
Were he to be released back into the Australian community as earlier indicated, a considerable amount of his time would be taken up in supervised activities controlled by people who had his best interests at heart. There was no evidence to the contrary that would indicate that these witnesses were being anything other than honest in their evidence. I would have to take their evidence at face value.
His mother, as most mothers are, was very supportive and certainly could be relied on to do her best (although clearly she was not able to stop him embarking on his crime spree or doing any other antisocial activities prior to his incarceration). The biggest factor in his favour here is that his mother obviously cares for him and he did seem to show a considerable amount of emotional connection with his mother and a desire to do the right thing by her. If anything, I detected any remorse he had shown when he was committing these offences was the grief he was causing his mother.
The fact that he only found out that he was not an Australian citizen when his visa was cancelled is potentially of some relevance in that he now has an appreciation of what his responsibilities are and what the consequences are if he misbehaves. Were he to remain in Australia, I believe this certainly would act as a very strong deterrent to further misconduct.
As a result of the statements supporting him only becoming apparent after 20 May 2016, there was very little in the way of objective evidence in his favour that could have been put before the delegate.
The crime spree was committed when he had just turned 18. His youth is something I take into account.
I now turn to the key factors I must take into account.
ANY ADVERSE FACTORS
His extensive record, and especially the four robberies in company, are violent offences where in three instances, people actually got hurt as a result of his actions and are the most adverse factors affecting him.
Clause 6.2(1) of the Direction states 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”. The role of the decision maker is to determine whether the risk of future harm from a non-citizen is unacceptable. That is why we have the character test which this young man has failed.
The Australian community expects its government to cancel the visas of people who commit serious crimes in Australia and are not Australian citizens. This offender has committed a serious crime against an elderly person, albeit a drug supplier and it appears against a person who may have been disabled.
In the Applicant’s favour is the principle that Australia may afford a higher level of tolerance of serious conduct for a person who has lived in our community for most of their life or from a very young age, which is the case with the Applicant.
Another principle is the length of time the non-citizen has been making a positive contribution to our community and apart from a short period of time working, the Applicant has had very little opportunity to make a positive contribution, nor has he shown any particular propensity to do so.
Part C of the Direction stipulate three primary considerations.
Protection of the Australian community
I have already at commented on this primary consideration at length. The Applicant's conduct to date and criminal activities are certainly of a serious nature.
A further sub-consideration under this primary consideration is the risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct.
The delegate quite correctly stated that he had looked at the nature of the harm to individuals or the community should the Applicant engage in further criminal conduct and the likelihood of further criminal or serious conduct and came to the conclusion that should the Applicant reoffend in a similar manner it may result in conduct that would cause psychological and physical harm to a member of the Australian community.
The delegate went on to say that no mitigating factors were evident in the submissions made to him by the Applicant. They noted at paragraph 30 of their Statement of Reasons for Decision under S501CA of the Migration Act 1958 not to Exercise Discretion to Revoke a Mandatory Cancellation Visa Decision Under S501(3A) (the Delegate’s Reasons) that the Applicant had not provided any evidence that he had participated in treatment or rehabilitation programs and went on to say he had not demonstrated insight into his offending behaviour in his communications with the Department.
The delegate concluded at paragraph 32, “…I find that [the Applicant’s] rehabilitation has not been tested in the community and that there remains a likelihood that he will reoffend. I find that should [the Applicant] re-offend in a similar manner it may result in conduct that could cause physical harm to a member of the Australian community”.
Against that obvious conclusion on the limited evidence before the delegate, I consider also the sworn evidence given by the Applicant's supporters and especially the evidence of his attitude whilst incarcerated and the support systems in place to when he leaves detention should he remain in Australia.
It is relevant to mention that paragraph 29 of the Delegate’s Reasons note that the Applicant had not provided letters of support from his family members. He has now, and these were filed with the Tribunal in May this year.
The only way to test whether the Applicant has been rehabilitated is to release him back into the community and as discussed earlier I do not have the option of a “Griffith’s Bond” available to me.
Were it not for the very significant support pledged by a number of people in his local community, this would have been a more straightforward decision and New Zealand would be gaining a strapping young 20 old citizen.
However the support on release is certainly something I do not believe I can discount and it is a factor that must weigh heavily in the Applicant's favour.
The best interests of minor children in Australia affected by the decision
This second primary consideration does not apply as the Applicant does not have any.
Expectations of the Australian community
At paragraph 35 of the Delegate’s Reasons, they conclude that given the very serious nature of these offences, the Australian community would expect that the Applicant should be returned to New Zealand. The ‘General Guide’ contained in clause 6.2 of the Direction also say that decision-makers should have regard to the government's views in this respect.
I suppose I can take it from that, given that the Respondent has submitted the decision should stand, that that is the position of the government.
The question here, given that the noncitizen clearly has breached Australian laws and in a very serious way, is whether there an unacceptable risk that the Applicant will breach the trust of the Australian people? Is this a situation where the nature of the offences are such that the Australian community would expect that a person should not hold a visa.
If the Australian community was as fully appraised as I am of the facts in this case, I think their views may well be mixed. There would be a natural expectation that this man should not be given another chance and that because of the very serious nature of the offences he should be deported. The countervailing view to that might be yes, these are very serious offences but he knows no other country but Australia. He is for all intents and purposes in fact, if not in law, an Australian. The Applicant has lived here since he was six years old and has what appears to be an amazing support group prepared to assist and guide him upon release and on that basis he may be worth a chance.
The delegate looked at the five ‘Other Considerations’ contained in clause 14 of the Direction, these are as follows. It is important to note that these considerations are not exhaustive.
International non-refoulement obligations
These are not relevant in this case.
Strength, nature and duration of ties
I agree with the delegate that as a result of the Applicant having arrived in Australia at the age of six and not knowing any other home, that the Australian community would afford a higher tolerance of criminal conduct that if he came here as an older person and had not been here for as long.
I also think the delegate is quite right when he accepts the effect of the revocation upon the Applicant's family would impose emotional hardship on them and whilst I think he is being a little bit generous in terms of saying that the Applicant made some contribution to the community by his employment it is nevertheless a relevant factor. I say generous because I do not think 10 or 11 months working on a farm is of any huge significance. It indicates merely that the Applicant can hold down a job (given that the only reason he left the job on the chicken farm was because his mum moved back to Sydney).
It does show, I suppose, potential for any future employment he undertakes and offers the promise should he stay in Australia, of a solid contribution to our country through paid employment that should last many decades given that he is a healthy young man.
It is clear that all his relevant immediate relatives live in Australia and the only other relatives he has are in Samoa (who he does not see) and in New Zealand (who he does not want to see - and at any rate, appear to have been the reason his mother came to Australia in the first place).
Impact on Australian business interests
This is not relevant as the Applicant has no business interests in Australia.
Impact on victims
This does not appear to be a relevant consideration in that apart from the short-term harm and trauma suffered, even where the victims knew the Applicant there is no evidence to indicate that they are in any danger from, nor indeed that they know very much about him, apart from the fact that he was a very stupid young man who committed some pretty nasty offences against them.
There is also nothing to indicate that the Applicant has shown any desire to get even with any victims.
Extent of impediments if removed
The delegate looked at the impediments the Applicant would face if removed to New Zealand, especially in relation to establishing himself in maintaining basic living standards in the context of what is generally available to other citizens in New Zealand. He considered that he was likely to become homeless and may be forced back into a life of crime.
At paragraph 46 of the Delegate’s Reasons, they stated “New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education and social welfare and housing support". The delegate went on to say that the Applicant would have equal access to those, just like any other New Zealand citizen, but concluded that because all immediate family members were in Australia, the non-revocation of the cancellation decision would involve hardship for him.
I further note that evidence given by the Respondent indicated that the Applicant would not simply be just dumped at the airport, but that there would be someone to meet him and to provide some additional assistance. Were he to be deported, it would be entirely up to him whether he would seek out his family members and if he drifted off into a life of crime that would be his own fault.
In paragraph 53 of his decision the delegate stated: “I am cognizant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel his Visa, even applying a higher tolerance of risk of reoffending by Mr Tumaialu that I otherwise would because he has lived in Australia for a young age”.
The delegate went on to say that they had considered the length of time the Applicant has made a contribution to the Australian community and the consequences of the decision on his family. They concluded that the Applicant represented an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed the countervailing considerations as described above and for those reasons, the original decision was not revoked.
I would not have any doubts in this matter that the decision of the delegate was the correct one were it not for the fact of:
(a)the additional evidence as to support systems available to the Applicant upon release;
(b)the lack of any problems whilst in jail or in detention; and
(c)to a lesser extent, because the delegate has ably covered it - the fact that we have here a young man who came to Australia at the age of 6 and who knows no other country and who actually believed himself to be an Australian citizen until recently. It is not like he has come here as an adult and committed these offences.
This is a case where the nature of the crimes are such that the Applicant’s visa can easily be revoked and the only real factors in his favour, and they are not insignificant, are his youth along with the length of time he has been in this country and the fact that as a result of the programs to be put in place upon his release, he has a very real chance of making it.
Were he to have shown a greater understanding of how wrong what he did was (and I think his low intelligence had something to do with this lack of understanding) I would feel quite confident that he would be a low or minimal risk of reoffending.
However my impressions of him were that he really is keen to make a go of it, that he does appreciate his situation, that he does love his mother and that he genuinely has thrown himself into the Pacific Islander group activities. Further that he appears to have an artistic bent and some talent that can be utilised in a positive way in the Australian community, he is young and the whole idea of parole is to give an ex-prisoner a suitable opportunity to rehabilitate and not reoffend.
I look on him as I would look on an Australian citizen with exactly the same characteristics and circumstances being released back into the community. I would have to say that his chances in the community are far greater because of his support systems than a lot of young men of his age who have committed similar crimes and who do not have available to them the support systems he has.
I note particularly the evidence of the success Pacific Islander Support program has had in terms of a very low recidivist rate amongst the graduates of that program (1 recidivist out of the last 25).
The extensive program the pastor at his church is putting in place is also a most significant factor in terms of ongoing support continuing after jail. He looks as if he has employment and constant support within his community.
I have commented on his mother and whilst I note that despite her love and support she was unable to stop him going off the rails earlier, his obvious love of her is certainly a factor in terms of him stay on the straight and narrow.
CONCLUSION
I have decided by the smallest of margins that the correct and preferable decision is to give this young man a chance. I would recommend the following to minimize any risk to the Australian community:
(i)I note the Applicant is on parole until June 2019 and this in itself, together with the conditions of release, is a very significant check.
(ii)Further to his conditions of parole, I would recommend to the authorities that if he were to be convicted in the next five years of any offences of violence or dishonesty, or any offence in relation to drugs, including mere possession of drugs, then he should be deemed to have blown his chance and his visa should be immediately revoked.
(iii)I would envisage that the authorities would take a very dim view of any offence he might commit except perhaps minor traffic offences such as parking offences or low level speeding offences or perhaps municipal offences such as keeping an unregistered dog.
(iv)Any offences such as a larceny, possess or supply a prohibited drug, common assault, assault police, resist arrest or hinder police should trigger an immediate cancellation of his visa.
(v)I would also expect that he would be formally warned in writing and have to acknowledge that warning in writing that any further transgressions will automatically in his case lead to a cancellation of his visa.
I have agonised and given a lot of consideration to what would go wrong should the Applicant reoffend, hence my question to Dr Farrar. Looking at the worst case scenario the Australian community might be faced with an assault and Robbery akin to when he dragged the 42 year old man out of a car and punched him several times.
Noting all the evidence above and considering the various steps in place to ensure he does not reoffend, I would assess that is a relatively low risk.
I have to call this as I see it on the evidence before me which is what I do and I have had the benefit of a lot more information and evidence than the delegate did.
I have, and with some considerable reservation, come to the conclusion that the correct and preferable decision in this case is to give the Applicant this chance because of his youth, his model behaviour in prison and in detention and the impressive support mechanisms available to him upon release. The Applicant now knows he is not an Australian citizen and that he is on a visa, and a shaky one at that.

Should the Applicant continue to rehabilitate, be a good member of society and achieve all the aims he indicated he hopes to achieve, he will make a lot of people happy, including himself, live a full and useful life and in time no doubt be entitled to Australian Citizenship. If he doesn’t, he almost certainly will not be able to stay in this country. It’s all up to him.
In accordance with the above, the decision of this Tribunal will be that the original decision to cancel the Applicant's Class TY Subclass 444 Special Category (temporary) Visa is revoked under section 501CA(4) of the Act.

I certify that the preceding 232 (two hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member
………………….[sgd]………………..
Associate
Dated 31 October 2016

Date(s) of hearing 20-21 & 28 June and 10 August 2016

Solicitors for the Applicant Sirus Migration

Solicitors for the Respondent Sparke Helmore

[2016] AATA 863

31 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Division	GENERAL DIVISION
File Number(s)	2016/1585
Re	Joe Tumaialu
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Bill Stefaniak AM RFD, Senior Member
Date	31 October 2016
Place	Sydney

Date(s) of hearing	20-21 & 28 June and 10 August 2016
Solicitors for the Applicant	Sirus Migration
Solicitors for the Respondent	Sparke Helmore