Tupou and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2879

Tupou and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2879 (28 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/4728

Re:Robert Tupou

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:28 August 2023

Date of written reasons:        08 September 2023

Place:Sydney

I set aside the delegate's decision and substitute in its place a decision revoking the cancellation of Robert Tupou's Class TY Subclass 464 Special Category (Temporary) Visa.

............................[SGD]............................................

Mr Rob Reitano, Member

Catchwords

MIGRATION – mandatory cancellation of Class TY Subclass 464 Special Category (Temporary) visa under section 501(3A) – whether there is another reason to revoke the cancellation – presence in Australia during and since formative years – positive contribution to Australian community -best interest of minor children - consideration of Ministerial Direction No. 99 – prospect of indefinite detention – decision under review is set aside

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

REASONS FOR DECISION

Mr Rob Reitano, Member

08 September 2023

1. A short time before his first birthday in 1986 Robert Tupou (Mr Tupou) came to Australia from New Zealand with his parents. Mr Tupou is a citizen of New Zealand. Except for much of his first year and about three years between December 1993 and December 1996, Mr Tupou has lived in Australia lawfully as he holds a Class TY Subclass 444 Special Category (Temporary) visa (visa). That changed on 18 March 2022 when the visa was cancelled and his lawful right to remain in Australia came to an end.

2. Mr Tupou’s visa was cancelled because s.501(3A) of the Migration Act 1958 (Cth) (Act) obliged the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) to cancel the visa on being satisfied that Mr Tupou had been sentenced to more than twelve months imprisonment, and that Mr Tupou was serving that sentence fulltime in a custodial institution.  On 27 June 2023, a delegate of the Minister reviewed the decision revoking the cancellation of the visa and affirmed the decision not to revoke.

3. Mr Tupou has asked the Tribunal to set aside the delegate’s decision and to substitute in its place a decision revoking the decision cancelling the visa, the practical effect of which is that Mr Tupou will be able to lawfully continue living in Australia.

4. I decided to make a decision setting aside the delegates decision refusing to revoke the decision cancelling the visa, and substitute in its place a decision revoking the cancellation of the visa. These are my reasons for that decision.

   ISSUES

5. The issue is whether I am satisfied that there is ‘another reason’ why the decision cancelling the visa should be revoked.

6. The issue arises because s.501CA(4)(b)(ii) of the Act says that revocation of the decision cancelling the visa can happen if the Minister, and in this review the Tribunal wearing his shoes, is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The only other basis for revocation is in s.501CA(4)(b)(i) of the Act, which is that the Minister, or again the Tribunal in his shoes, is satisfied that Mr Tupou passes the character test in s.501. Mr Tupou cannot pass the character test because he has a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment of 12 months or more.

7. There is no issue that the Minister was required to cancel the visa. There is no issue that Mr Tupou’s representations were made within the time and in the manner prescribed by the Minister’s invitation to him to make representations. There is no issue that the Tribunal is able to review the decision because Mr Tupou made his application for review in the time prescribed. I am satisfied that each of those prerequisites to reviewing the delegates decision refusing to revoke the cancellation of the visa are met.

   IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

8. The issue concerning satisfaction about whether there is ‘another reason’ why the Minister’s decision cancelling the visa should be revoked, requires the making of an evaluative judgment as to the existence of a reasoned basis or sound justification to revoke the delegate’s decision that cancelled the Applicant’s visa.

9. The satisfaction about there being ‘another reason’ is guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). The Tribunal is required by s.499(2A) of the Act to comply with the Direction in performing its functions and in the exercise of its powers, of which the review of a decision refusing to revoke the cancellation of a visa is one. The Direction is required to be applied by the Tribunal to determine whether there is a satisfaction about there being ‘another reason’ to revoke the decision cancelling a visa.

10. It is helpful to make some general observations about the Direction at the outset. The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision, but only to the extent that they are relevant.[1]

    [1] Paragraphs 5.2(6) and 6 of the Direction.

11. The ‘principles’ are in paragraph 5.2 of the Direction are:

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

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. The Direction refers to two categories of ‘considerations’ which are referred to as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:

    ·protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the strength, nature and duration of ties to Australia;

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.[2]

    [2] Paragraph 8 of the Direction.

13. The ‘other considerations’ include:

    ·legal consequences of the decision;

    ·extent of impediments if removed from Australia;

    ·impact on victims; and

    ·impact on Australian business interests

    ·any other considerations that the Tribunal considers relevant.[3]

    [3] Paragraph 9 of the Direction.

14. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[4] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[5] Further, the Direction also lays down within each consideration particular matters that must be taken into account.

    [4] Paragraph 7(1) of the Direction.

    [5] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).

15. The obligations to consider matters raised by the considerations, and to take into account various matters within each of them, carries with it recognition that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[6] In this regard, sight should not be lost of the fact that the subject matter with which the decision-maker is dealing is not just some theoretical or esoteric exercise but something that will inevitably have a very real, lasting and most probably lifelong impact on many people who may be affected by the decision in one way or another. That the decision potentially involves the exclusion from Australia of someone who, like in this case, has lived in Australia for a substantial and important part of their life underscores its seriousness. It hardly needs be said that the far-reaching ramifications to the community, an applicant, her or his family, friends and associates, are very important and point firmly to the real need to consider all matters earnestly, carefully, and deliberatively.

    [6] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] (per Allsop CJ).

16. It is necessary to consider the matters that are relevant to each of the relevant primary and other considerations in turn noting that neither party suggested that considerations related to conduct involving family violence, refoulment obligations and impact on Australian business interests were relevant. To the extent that the Minister suggested that consideration of the impact on victims was relevant, it was frankly conceded that there was no evidence that would permit any meaningful findings to be made such that it was neutral so far as the decision-making process was concerned.

    PROTECTION OF AUSTRALIAN COMMUNITY

17. I am directed to consider the nature and seriousness of Mr Tupou’s conduct which includes both criminal offending and other conduct and the risk to the Australian community, should Mr Tupou commit further offences or engage in other serious conduct. I must have regard to the fact that the Australian Government and community regard offences that involve violence and violent offences against women as very serious regardless of the sentence imposed. I must have regard to the fact that the Australian Government and community view offences against vulnerable members of the community to be serious. I am also required to have regard to the sentence imposed (in this case for those offences that did not involve violence against women because they are regarded as very serious in any event), the frequency of the offending, the existence of any increased trend in seriousness, the cumulative effect of repeat offending, whether false or misleading information has been provided to the Department by not disclosing prior criminal offending and whether there has been reoffending after being warned in writing about the consequence of reoffending.

18. Mr Tupou’s has, since October 2000, been sentenced in respect of the offences of robbery in company (30 October 2000), robbery in company whilst armed with a dangerous weapon which was a shortened rifle (20 October 2004), assault occasioning actual bodily harm (17 January 2017) and robbery (26 November 2021). The offences of robbery in company and robbery in company with a dangerous weapon attract maximum penalties of 20 and 25 years imprisonment respectively. The offence of robbery carries a maximum penalty of 14 years imprisonment and the offence of assault occasioning actual bodily harm carries a maximum penalty of 5 years imprisonment. All of the offences are having regard to the maximum penalties that are provided for them objectively serious.

19. Mr Tupou was convicted and sentenced to 7 years imprisonment with a non-parole period of 4 years in relation to the offence of robbery in company with a dangerous weapon and convicted and sentenced to 18 months imprisonment with a non-parole period of 9 months for his most recent offence of robbery. The fact that both offences involved violence against women means that they are very serious. The actual sentences imposed, confirms that both offences are objectively to be considered as involving very serious offending: seven years and, and even 18 months, out of someone’s life is a significant period of time.

20. The other two offences — the offence of robbery which was committed when Mr Tupou was a juvenile and the offence of assault occasioning actual bodily harm — were both dealt with leniently. The first being punished by a probation order with conditions about good behaviour and attendance at school for 18 months, and the second with a community corrections order, a form of good behaviour bond, with supervision conditions for a period of two years. The robbery offence did not attract a conviction because the Children (Criminal Proceedings) Act 1987 (NSW) prohibited the recording of a conviction in the circumstances. The assault occasioning actual bodily harm involved a fight with a neighbour of Mr Tupou’s mother about where a car had been parked. In both cases the conditions associated with the probation and the community corrections order were complied with. Those offences appear less serious when regard is had to the sentences imposed, but nonetheless they are certainly serious because they both involve personal violence.

21. There are some aspects of the offence of robbery in company with a dangerous weapon that require particular consideration because they cast light on the seriousness of the offence. The circumstances of the offending involved four young men with weapons, two rifles and a machete (although the charge suggests it was a shortened rifle) which was used by Mr Tupou in what was a planned robbery of a donut shop. Two of the victims of the offending, young women employed in the shop, were exposed to the threat of imminent danger presented by the threat of violence as well as by Mr Tupou swinging the machete quite close to one of them. One of the women, because of what Mr Tupou did and said, thought she was going to be killed. Although no one was in fact physically hurt, the sentencing judge referred to the obvious emotional impact upon the young woman. The sentencing judge described the young women as being vulnerable which was obviously so. The Australian Government and the community regard such an offence as very serious because it involves violence against women.

22. Likewise, the more recent robbery offence involved planning and, importantly for present purposes, threats of violence to a woman who was vulnerable being a worker working alone in the early hours of the morning. The offence occurred on 4 March 2021 after Mr Tupou had been gambling during the afternoon and lost a considerable amount of his and his partners joint savings. The circumstances of the offence involved Mr Tupou going to a brothel in suburban western Sydney in the early hours of the morning, confronting the female manager and demanding that she give him money. Mr Tupou pushed her when she went to grab her mobile phone, grabbing her bag and a wallet with about $18,000 in it, pushing her twice more once when she tried to follow him into a car park where he was described as having thrown her aside. Mr Tupou punched the window of a car in which the woman took refuge. Violent conduct against a woman who was vulnerable because of her working alone in the early morning, together with the planning associated with the offence, render the offence objectively very serious. Again, it is an offence which the Australian Government and the community view as being very serious and I must consider that.

23. The Magistrate, when sentencing Mr Tupou, regarded the offence as ‘an escalation in his offending’, but that does not appear to be correct given the more serious earlier offence where company and weapons were present in the offending. It may be that the Magistrate’s reference to escalating offending is no more than a reference to the immediately prior offence of assault occasioning actual bodily harm. It does not matter a great deal given that the offence is objectively very serious in any event. For completeness, I should specifically note again that his offence, like the earlier robbery in company with a dangerous weapon, did not involve physical injury to the victim, but it no doubt involved the emotional and psychological trauma that, naturally enough, accompanies such violent offending.

24. Mr Tupou also has a record involving his commission of several offences of driving with a mid-range prescribed content of alcohol. I do not consider that overall, these add a great deal to what is a very serious record of criminal offending, because, whilst serious they are not as significant as the other offences to which I have referred and are of a different nature to that offending and occurred about 10 years ago.

25. The frequency of the criminal offending at least so far as the more serious offences, the robberies and the less serious assault occasioning actual bodily harm, are concerned, does not disclose any regular pattern of offending. Some of the initial offences occurred a few years apart and then there was a period of about 15 years of non-offending followed again by two offences a few years apart. As such, there appears to be no trend of increasing seriousness in the offences; the armed robbery in company appears to be the most serious offence and occurred before the assault occasioning actual bodily harm and the more recent robbery. 

26. The question of the offences being committed after a formal warning about the consequences of further offending needs to be considered. The offences on 17 January 2019 and 26 November 2021 were both committed after Mr Tupou was formally warned in letter from the Department of Immigration and Citizenship on 1 April 2008 that further serious offending would put his visa in jeopardy. The terms of the warning stated :‘[d]isregard of this his warning will weigh heavily against you if your case is reconsidered’. Mr Tupou said during cross-examination that he either did not read the letter containing the warning properly, because he received it at the time he was being released from prison and was just happy to be free, or alternatively, he had forgotten about the warning by the time he came to commit the offences in January 2019 and November 2021. There is an air of reality about both explanations despite the seriousness of the warning. One can well imagine the sense of relief and freedom that would accompany being let out of a corrections centre after so long. Further, the very long period of time between the warning and the more recent offence, inclines me to believe that, by the time Mr Tupou came to offend more than 13 years later, the warning was very probably a long way from Mr Tupou’s mind. I should take into account the warning but should balance the warning against its age and the fact that Mr Tupou has no recollection of it; his later offending should not be regarded as in deliberate defiance of the warning.

1. The criminal offending is, when taken cumulatively and having regard to the other matters to which I have referred, undoubtedly very serious.

2. Next, I am required to consider the nature of the harm to individuals should Mr Tupou reoffend in the future. It is important that all of Mr Tupou’s offending, other than the assault, did not involve physical injury to anyone, but it did more probably than not involve emotional and psychological harm to each of the victims. That is a serious form of harm. There was obviously physical harm that resulted from the assault occasioning actual bodily harm offence. There was some financial loss that resulted from the two more recent robbery offences. There was, naturally enough, economic loss to the community arising from the law enforcement endeavours that went with investigating, charging, prosecuting and imprisoning Mr Tupou for each offence. The likely harm of the same or similar reoffending is likely to be significant insofar as it affects individuals and the community.

3. Finally, I need to consider the likelihood of Mr Tupou engaging in further, future criminal conduct. When he was sentenced for his most recent offence on 5 November 2021, the Magistrate, whose sentence was only disturbed on appeal by an adjustment of the non-parole period, referred to, and relied upon, a Sentence Assessment Report dated 7 September 2021 prepared by a Community Corrections Officer from the Department of Justice in New South Wales. That report noted Mr Tupou’s ‘demonstrated insight into his offending behaviour’, ‘his sympathy towards the victim’ and his apparent ‘understanding about the impact of his offending on his family’. That report also referred to Mr Tupou’s then involvement in counselling to address his offending behaviours which, it seemed, had their origins in his gambling problem. The report placed Mr Tupou’s risk of reoffending, according to the ‘Level of Service Inventory – Revised’, as being in the ‘Medium-Low risk of reoffending’. The Magistrate considered that, largely due to his previous offending, Mr Tupou’s prospects of not reoffending to be ‘guarded’ as were his prospects of rehabilitation.

4. A Community Corrections Immigration report dated 10 June 2022 recorded that, even though Mr Tupou had been involved in an assault while incarcerated, case records ‘indicated his work ethic and behaviour are exemplary…’. The report concluded that ‘Mr Tupou has excellent post-release prospects including immediate prosocial support, stable accommodation, and full time employment’. The report continued, ‘[e]qually, his attitude and willingness to engage in offence-targeted intervention holds him in good stead to address his criminogenic risk factors.’ Significantly, those opinions were expressed by both a Community Corrections Officer and a Manager at Grafton Community Corrections — both of whom would have some knowledge and expertise in matters associated with the prospect of reoffending and who were distant from the process associated with visa cancellation.

5. A later report dated 4 July 2022 was prepared by Mr Tim Watson-Munro, a psychologist. Mr Watson-Munro was retained by Mr Tupou for the purpose of providing an expert opinion as to Mr Tupou’s risk of re-offending. Mr Watson-Munro was presented as an expert to the Tribunal, although he had agreed to be bound by the ‘Expert Witness Code of Conduct under the Uniform Civil Procedure Rules 2005, Schedule 7’ rather than the Tribunal’s ‘Persons Giving Expert and Opinion Evidence Guideline’. I do not consider that anything material turns on the matter. I will treat Mr Watson-Munro’s evidence as expert evidence.

6. Mr Watson-Munro conducted a thorough review of much of the material and interviewed Mr Tupou and his wife. After expressing his agreement with the Sentencing Assessment Report, Mr Watson Munro went on to ‘suggest that now that he is substance free and has greater cognitive control and insight he is trending towards a low risk of re-offending’. The reference to substance abuse was a reference to Mr Tupou having used cocaine once a week and to his drinking to excess. In an updated report of 11 August 2023 Mr Watson-Munro confirmed his opinion that Mr Tupou’s risk of reoffending was trending from moderate to low and that ‘with continuing support, supervision and treatment in the community, coupled to the involvement with his family, his prognosis in terms of not offending in the future will remain on a positive trajectory’.

7. In my view the available opinions from the Magistrate, the Community Corrections Officers and Mr Watson-Munro all form a solid foundation for the view that Mr Tupou’s risk of reoffending lies below the middle of the range of likelihoods. There is one particular matter that strongly points in that direction which is Mr Tupou’s genuinely expressed commitment to rehabilitation. His previous engagement in counselling concerning his gambling problem whilst he was on bail and awaiting sentencing; and to what the Community Corrections Officers referred to as his ‘willingness to engage in offence targeted intervention’ are, to my mind, particularly significant as they indicate a genuine insight into the offending and a consistent pattern of wanting to do something about it so that it does not happen again.

8. There are many ‘pro-social’, factors in play that all point away from the likelihood of repeat offending. In particular, the positions taken by Mr Tupou’s wife who has offered her continued support for her husband despite his wrongdoing and despite him having thrown away thousands of dollars of their combined savings; by Mr Tupou’s wider family including his mother, father and two sisters as well as the support that has been offered by many of his friends. It is true, as the Minister submitted, that much of this was in place before Mr Tupou committed the offence that brought him to today, but it needs to be kept in mind that most of the people involved, if not all of them, had little idea about the nature and extent of Mr Tupou’s gambling problem and exactly what was going on with him. That having been starkly exposed to all of them since 4 March 2021 puts their involvement and their commitment to Mr Tupou’s rehabilitation in a very different light. They are all likely to add significantly to the support Mr Tupou has available that will assist him in not reoffending.

9. I should also have regard to the deterrent effects of Mr Tupou having been incarcerated once again and after that being placed in detention. The fact that he has confronted the brink of being returned to a country where he has no social network and would be potentially isolated from his wife, children, family and friends must be presumed to have some effect on the likelihood of repeat offending. It is difficult to see how the experience he has been through will not remain with him for a very long time.

10. In the end, Mr Tupou might offend in the future, but I do not consider the likelihood to be high. After having particular regard to the expert opinions to which I have previously referred to, I consider the Applicant’s likelihood of re-offending in the middle of the range of probabilities.

11. I am satisfied that the nature and seriousness of Mr Tupou’s criminal conduct to date is very serious, and that the consequences of him reoffending will harm the community and potentially individuals. However, the likelihood of Mr Tupou reoffending is in the mid-range of likelihoods. This consideration weighs against revoking the decision cancelling the visa, but only moderately so given my conclusion about the likelihood of reoffending.

    STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIAN COMMUNITY

12. I must consider the impact of my decision upon Mr Tupou’s immediate family members in Australia where they are Australian citizens, Australian permanent residents or people with a right to lawfully remain in Australia indefinitely. I am required to give more weight to this consideration where the ties involve children in those categories. I am required to consider the strength, duration and nature of family ties or social links generally to people in those categories.

13. I must also consider the strength, nature and duration of other ties that Mr Tupou has to the Australian community. In particular, I must have regard to the length of time Mr Tupou has resided in the Australian community ‘noting that considerable weight should be given to the fact [Mr Tupou] has been ordinarily resident in Australia during and since [his] formative years regardless of when [his] offending commenced and the level of that offending’. I must give more weight to the time Mr Tupou has contributed positively to the Australian community, and less weight is to be given if Mr Tupou was not ordinarily resident in Australia during his formative years and the offending started soon after arriving in Australia. 

14. Mr Tupou’s wife, who he met in May 2008, moved in with in May 2009 and married in in October 2012, is an Australian citizen. Although he and his wife’s relationship has been strained at times because of Mr Tupou’s gambling, they remain married and will live together should Mr Tupou remain in Australia. Yet, while they have a close and loving relationship, Mrs Tupou made clear in her evidence that, because of her elderly parents and her desire for her children to complete their education in Australia, she would not move to New Zealand if Mr Tupou were to be deported.

15. Mr Tupou is the stepfather to his wife’s two daughters aged 17 and 23 years respectively, and two children he shares with his wife: a daughter and son aged 13 and 12 respectively. All of the children are Australian citizens. The children’s statements indicate that they are close to their father. The two youngest children have known him for all of their lives, and the oldest have known him for a significant part of their lives, approximately a little over a decade. There is a strong bond between each of the children and their father. These are clearly strong and close familial ties formed over more than 15 years and also involve children such that I should give them more weight than might otherwise be accorded to them.

16. Mr Tupou’s mother and father are both Australian permanent residents. They presently live in Queensland. Mr Tupou has a close relationship with both of them. Mr Tupou has two sisters aged 28 and 32 years of age. They too are Australian permanent residents. Mr Tupou is close to them, speaking to them once a week before he entered prison and about once a fortnight since his incarceration and then detention.

17. Mr Tupou provided a list of about one hundred people who he variously identified as uncle, aunt, niece, nephew or cousin. The list is a little unsurprising given that one of Mr Tupou’s cousins explained in her statement that her father and Mr Tupou had six other siblings who all live in Australia. They have another sister who lives in Tonga. The statement identified that the family were close and there are some other statements that confirm as much. Although the evidence did not identify the citizenship, residency or lawful authority of those people to be in Australia, I consider it reasonable to presume that a good proportion of them are entitled to be in Australia as citizens, as permanent residents or visa holders. However, I do not give these family members much weight at all because I do not know much about the nature of Mr Tupou’s ties and relationships with the people in the list. 

18. Mr Tupou provided evidence about other social ties he has to the Australian community: through nine years of employment as a leading hand supervising about 15 to 20 employees in the rail industry working for a large company, to his positive contribution to his nieces and nephews lives; the fact that he is ‘always willing to help out’, his assistance with his nieces and nephews in sporting events, his own participation and success at sports in particular rugby and rugby league, as well as his participation through his father, who is a minister in the church, and his children in the local church. Much of the evidence identified and confirmed Mr Tupou as a hardworking man with a good work ethic. These things evidence a positive contribution, both through employment and through social engagement, to the Australian community. I should accord it some considerable weight especially as it has been consolidated over a significant period of time.

19. Mr Tupou has been a resident of Australia for approximately 34 years. He was present in all but one of his formative years which is usually regarded as the years between birth and about eight years of age when a child is developing their cognitive, social, emotional and physical functioning. Mr Tupou was present in Australia for almost all of those years. If formative years is co-extensive with childhood years, that is up to 18 years of age, then Mr Tupou was present in Australia for a large proportion of those years. As Mr Tupou was present in Australia during and since his formative years, I am required to give this consideration considerable weight, regardless of the fact of when his offending commenced, and regardless of the fact that it is very serious offending.

20. All these matters lead me to be satisfied that I should give the strength, nature and duration of Mr Tupou’s ties to Australia considerable weight in favour of revoking the cancellation of the visa.

    BEST INTERESTS OF MINOR CHILDREN

21. I must make a determination about whether cancellation of the visa is in the best interests of minor children affected by the decision and to the extent that their interests might differ I must consider them separately. There are a series of matters relevant to this consideration which I will address in the context of the particular facts.

22. There are three minor children, a 17-year-old stepdaughter, a 13 year old daughter and a 12 year old son. Mr Tupou has known all of the children for all of their lives. He has stood in the position of parent and father for all their lives. He has only been absent from their lives for the period of his incarceration and detention which is about the last 20 or so months although they visited him monthly whilst incarcerated, because he was located in country New South Wales and they resided in metropolitan Sydney, and weekly since he has been in detention. Before that he was active in the children’s lives doing the day-to-day things that fathers do such as helping with homework and sport and engaging in daily activities with the children.

23. During his time in detention and in prison the children have spoken to their father on the phone and visited him. The children visited him monthly or thereabouts when he was in a correctional centre in country New South Wales and weekly since he has been in detention in metropolitan Sydney. It is likely that he will play a positive role in each child’s life over the many years until each child turns 18 — subject to him being successful in his rehabilitation and being able to stay out of trouble which I consider to be a real likelihood. It is unlikely that his criminal offending will have any impact on any of the children. His acceptance of responsibility for his wrongdoing is likely to have a positive influence on the children as it demonstrates the importance of acknowledging one’s own mistakes.

24. It is difficult to measure the impact on each child should their father be removed to New Zealand other than to observe that the separation over the last 20 months has clearly distressed each of the children who so obviously and desperately want their father to come home. There are no known people who would fill the parental role of father for any of the children, and there was no evidence of any such persons. Yet, given the overwhelming evidence of the network of support available, the real possibility that one or other or some of the uncles and nephews may step in to provide support should be taken into account.  However, none of them are any of the children’s father. There is no issue or suggestion that the children were, or have been, at risk by reason of family violence or are emotionally traumatised by Mr Tupou

25. It is in my assessment important that all the children want their father in their lives, and they are old enough to express a meaningful opinion about that. It is also important that each of them have, in their own words, expressed the bond they have with their father.

26. I do not consider that the children being able to talk to their father on the phone or by some other technology is in their best interests; their best interests would be served by having a day-to-day relationship with their father physically present in their lives. Nor do I consider it in the children’s best interest for them to uplift their lives in Australia, where their extended family lives, and follow their father and mother to live in New Zealand if the decision cancelling the visa were not revoked. In that regard, I note Ms Tupou’s evidence that that would not happen as she would remain living in Australia with the children should Mr Tupou return to New Zealand.

27. I am satisfied that the best interests of each of the three children, but especially the two younger ones who have quite a way to go till they are 18 years of age, weigh strongly in favour of revocation.

    EXPECTATIONS OF AUSTRALIAN COMMUNITY

28. I am required to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ’has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.

29. This means that ‘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 non-citizen should not … continue to hold a visa.’ Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.

30. I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[7] This involves an evaluation about how strong this factor is in the particular circumstances of the case.

    [7] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

31. The nature of the criminal offending, as I have found, is very serious such that the expectations of the community weigh in favour of non-revocation. The offences are very serious, but the conduct if repeated, and the harm likely to be caused if they were to be repeated, is not so serious such that revoking the mandatory cancellation is out of the question. The offences are not in the category of the ‘particular’ offences that make non revocation appropriate simply because of the nature of the offences. 

32. Mr Tupou has been in Australia for all of his life except for the first year and the three years he spent overseas, a total of around 34 years, which is in any terms a very long time. In particular, he has been in Australia during and since his formative years except for the first year of his life and his three years overseas. He has contributed positively to the community during that time in the ways I earlier identified. There are in this matter strong countervailing considerations in terms of ties to the Australian community and positive contribution to the community. Further, the terms of principle 5.2(5) indicate that that there should be  ‘a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age’. Those matters are clearly in play in Mr Tupou’s circumstances 

1. Having regard to those matters, it follows that the expectations of the Australian community should be afforded moderate, but not heavy, weight in favour of non-revocation.

   EXTENT OF IMPEDIMENTS IF REMOVED

2. I must consider the extent of any impediments that Mr Tupou may face in establishing himself and maintaining basic living standards taking into account his age, health, any language barriers and any social, medical, and economic support available to him if he is returned to New Zealand.

3. Mr Tupou has no family or social network in New Zealand. That will undoubtedly cause him some difficulties in establishing himself. The depressive illness he suffers now is unlikely to help much in him establishing himself in New Zealand given his lack of any social network. Apart from those things there do not appear to be any significant language or cultural barriers to Mr Tupou establishing and maintaining himself. He is likely to receive medical and economic support. The main impediment would appear to be his likely social isolation. This consideration weighs slightly in favour of revoking the cancellation. 

   WHY THE CANCELLATION SHOULD BE REVOKED

4. I have found that the protection of the Australian community weighs firmly in favour of non-revocation of the decision cancelling the visa especially given his very serious offending. I consider that the consequences of Mr Tupou’s reoffending, should he do so, are not so serious as to preclude revocation. I consider that the prospect that Mr Tupou will reoffend is moderate. I have found that the expectations of the Australian community weigh moderately against revocation because the offending was not so serious as to rule out the prospect of revocation and also because of the countervailing considerations associated with the age from which, and very long-time that, Mr Tupou has been in Australia. I have found that the best interests of Mr Tupou’s three young children strongly weigh in favour of revocation. I give considerable weight to Mr Tupou’s ties to the Australian community because he has been in Australia for a long time from and during his formative years, and also because of the positive contribution he has made to the Australian community through work and social engagement in the significant period he has been in Australia. The primary considerations favour revocation of the decision cancelling the visa.

5. So far as the other considerations are concerned, I have found that there are some impediments to Mr Tupou establishing himself that weigh in favour of revocation, but they are not of any significant weight.  There are no other considerations that are relevant

6. In all of the circumstances I am satisfied that there is another reason to revoke the cancellation of the visa which reason is firmly rooted in Mr Tupou’s very strong familial and social ties to Australia and the Australian community which have been formed over a considerable period of time and the best interests of his three young children.

   DECISION

7. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Robert Tupou’s Class TY Subclass 464 Special Category (Temporary) visa.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

...........................[SGD].............................................

Associate

Dated: 08 September 2023

Date(s) of hearing:	28 August 2023
Advocate for the Applicant:	Bhavesh Lakhani, Migration Agent
Counsel for the Respondent:	Benjamin Zipser
Solicitors for the Respondent:	Sarah Hardie, HWL Ebsworth Lawyers