Usoalii and Minister for Immigration and Border Protection (Migration)

Usoalii and Minister for Immigration and Border Protection (Migration) [2018] AATA 1112 (3 May 2018)
Division:GENERAL DIVISION
File Number: 2016/6414
Sila UsoaliiRe:
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:3 May 2018
Place:Sydney

The reviewable decision, being the decision of the delegate of the Minister for Immigration and Border Protection made 14 November 2016 not to revoke the cancellation of Mr Usoalii’s Subclass 444 (Special category) visa, is affirmed.
...............[sgd].........................................................
J W Constance
Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – protection of the Australian community – nature and seriousness of conduct – robbery in company – assault – risk to community should conduct be repeated – best interests of minor children – expectations of Australian community – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
PRACTICE AND PROCEDURE – application for stay order – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Ministerial Direction No. 65 under s 499 of the Migration Act 1958
REASONS FOR DECISION
Deputy President J W Constance
3 May 2018
A. INTRODUCTION

Mr Usoalii was born in 1996. He came to Australia from New Zealand with his family when he was six years old and has resided here continuously since.
In November 2015 Mr Usoalii was sentenced to two terms of imprisonment of four years (commencing June 2014 and September 2014) to be served partly concurrently. The total non-parole period was two years and three months.
On 9 June 2016 the Minister for Immigration and Border Protection cancelled Mr Usoalii’s visa (“the original decision”) as he was satisfied that Mr Usoalii did not pass the character test set out in the Migration Act 1958 (Cth) by reason of his having been sentenced to a term of imprisonment of 12 months or more.[1]
[1] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.
In accordance with the procedure set out in the Act, Mr Usoalii made representations to the Minister seeking a revocation of the original decision. The Minister refused Mr Usoalii’s request (“the reviewable decision”). On 24 November 2016 Mr Usoalii applied to the Tribunal to review the reviewable decision.
Following a hearing in January 2017 the reviewable decision was affirmed by the Tribunal in March 2017. The Tribunal’s decision was set aside by the Federal Court of Australia in August 2017 and the matter was remitted to the Tribunal to be reheard. At the re-hearing the transcript of the January 2017 hearing was taken into evidence. Additional evidence was taken.
For the reasons which follow the reviewable decision will be affirmed. This means that Mr Usoalii’s visa remains cancelled.
B. BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr Usoalii.
Family situation
Mr Usoalii is 22 years old and a citizen of New Zealand. He has lived in Australia with his family since June 2002. Until it was cancelled he held a Subclass 444 (Special category) visa.
Mr Usoalii’s father died after the family moved to Australia. His mother (Mrs Usoalii) lives in Australia with Mr Usoalii’s two younger brothers aged 21 and 12 years. Mr Usoalii has two older sisters, six uncles, six aunts and two nephews living in Australia.
Mr Usoalii also has a four year old son who is being cared for by the child’s mother, Ms E’e. Ms E’e and their son are living with Ms E’e’s family. Prior to Mr Usoalii’s incarceration their son was living with Ms E’e and Mr Usoalii in Mr Usoalii’s mother’s home. The son attends school in suburban Sydney.
Children’s Court matter
On 1 November 2012, Mr Usoalii appeared in the Children’s Court. He was found to have committed the offence of aggravated break and enter in company. He was made the subject of a 12 month supervised juvenile justice order and required to undertake alcohol and drug counselling. He committed this offence when he was aged 16 years.[2]
[2] Exhibit AA7 p.AB77.
Convictions of robbery in company
On 19 November 2015 Mr Usoalii was convicted in the New South Wales District Court of two counts of robbery in company. The offences were committed in May 2014. On each count he was sentenced to imprisonment for four years with a non-parole period of two years; the sentences were served partly concurrently.[3]
[3] Exhibit AA7 p.AB77.
Disciplinary action and conviction while Mr Usoalii was in prison
Whilst in prison Mr Usoalii was involved in three incidents which brought him to the attention of authorities. He committed assaults on two separate occasions (17 November 2015 and 31 March 2016[4]) and on another occasion he failed to attend muster. He described these incidents as “just part of prison life”.[5]
[4] Exhibit AA7 p.AB80.
[5] Transcript 24/01/17.
Assault committed on 17 November 2015
On 17 November 2015 Mr Usoalii punched another inmate following a dispute as to the inmate’s place in a queue to use a telephone and the inmate using derogatory language directed at Mr Usoalii. Mr Usoalii pleaded guilty to the offence of assault occasioning actual bodily harm in the New South Wales Local Court in June 2016. He was sentenced to a fixed term of imprisonment for three months to commence on the expiration of his non-parole period. This sentence expired on 3 December 2016.
Assault committed on 31 March 2016
The assault for which Mr Usoalii was disciplined on 31 March 2016 occurred when he was involved in a fight with several other inmates. His access to the prison canteen was denied for seven days.
Release from prison and commencement of immigration detention
Mr Usoalii was released from prison on 3 December 2016 on completion of his sentence for the assault which occurred in prison. He was immediately taken into immigration detention as he no longer held a visa. He remains in immigration detention.
Failure to pass the “character test”
It is not in dispute that, by reason of his criminal record, Mr Usoalii does not pass the “character test” set out in the Migration Act.
C. THE RELEVANT LEGISLATION
Subsection 501(3A) of the Migration Act 1958 (Cth) provides:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This mandatory cancellation decision is referred to later in the Act as “the original decision”.
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to cancel Mr Usoalii’s visa is provided by section 500.
D. DIRECTION NO.65
Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 22 December 2014.
Subparagraph 6.1(3) of the Direction provides, in part:
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.
Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance subparagraph (1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C, in order to determine whether the mandatory cancellation of Mr Usoalii’s visa will be revoked.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:
(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.
…
(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.
Paragraph 7 sets out how the discretion is to be exercised. It relevantly provides:
(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-citizen’s visa will be revoked.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[6] Primary considerations should generally be given greater weight than the other considerations.[7]
[6] Direction 65, paragraphs 6.2(3) and 8(1).
[7] Direction 65, paragraph 8(4).
Paragraph 13(2) provides:
In deciding whether to revoke a 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.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. 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.
E. ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons. Before the discretion to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the discretion have been met.
This is consistent with clause 6.1(2) of the Direction which states in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. [Emphasis added].
It is not in dispute that Mr Usoalii has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection.
The correct approach to the manner in which the various factors are to be considered was set out by the Federal Court in Gaspar v Minister for Immigration and Border Protection:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section.[8]
[8] [2016] FCA 1166 at para.38; cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66.
As Mr Usoalii does not pass the character test, the issue for determination is whether “there is another reason why the original decision should be revoked”.[9]
F. CONSIDERATION
[9] Subsection 501CA(4)(b)(ii).
IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL MR USOALII’S VISA SHOULD BE REVOKED?
F1. First primary consideration: Protection of the Australian community from criminal or other serious conduct
I note that I must have regard to matters set out in paragraph 13.1 being:
·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;
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engage in other serious conduct.[10]
[10] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
F1.1. The nature and seriousness of Mr Usoalii’s conduct to date
The conduct of Mr Usoalii in committing robbery and three assaults, all of which involved significant physical harm to others, is very serious.
Robbery in company involving assaults on two victims
The circumstances in which Mr Usoalii committed the offences of robbery in company were set out by English J. in the District Court as follows:
On Sunday 25 May 2014, at approximately 2.50am, the victims [Victim 1] and [Victim 2] decided to walk to McDonalds. CCTV cameras attached to Macquarie Fields police station captured the incident. The footage shows an unknown older male walk towards the direction of the offenders.
The victims, [Victim 1] and [Victim 2], can be seen in the top right-hand corner of the screen behind the older male. The older male continued to walk down the street, he walked past the offenders and out of sight.
Mataia walked in front of the other four offenders, who were all walking behind him in a row. Both victims were walking towards the offenders when they were approached by Usoalii, who stopped and asked them for cigarettes. [Victim 1] pulled out his cigarettes and the remaining four offenders all crowded around the victims. Sione stood a short distance behind the group, Shah stood very close to the victims and grabbed the smokes from [Victim 1’s] hands. Jeremaia, Usoalii and Mataia started to walk away. Shah put his hand in [Victim 1’s] pockets while Sione remained in the same spot, watching what was going on. [Victim 1] heard one of the males say “Hand over your stuff’.
Both victims took a step in the opposite direction to the offenders and Shah walked with them. Jeremaia and Usoalii and Mataia all turned back towards the victims. Sione also walked towards the victims. Shah was the closest to the victims and the others were standing very close by, watching.
All five offenders got very close to the victims, however it is unclear what was happening as the victims were obscured by a bush. [Victim 1] recalls them putting their hands in his pockets at some stage. [Victim 1] heard someone yell “Take his jacket”, [Victim 1] stepped away and Shah grabbed hold of [Victim 1’s] jacket. [Victim 1] attempted to pull away and Shah continued to hold the jacket.
At that point Shah, Jeremaia, Sione and Mataia started punching [Victim 1]. Sione followed [Victim 2], sending him off so that he could not assist his friend. [Victim 1] was continuously hit by Shah, Jeremaia, Sione and Mataia.
He fell to the ground, [Victim 1] was on his hands and knees and was slouched over with his jacket over his head. Whilst [Victim 1] was on the ground, Mataia moved away. He did sidesteps and he held his arms in a boxing like stance towards [Victim 2] to keep him away from [Victim 1]. In the meantime, [Victim 1] was continuously being punched and hit by Jeremaia, Sione and Shah.
Whilst that was occurring, Usoalii walked up to [Victim 1] and pulled him up and held him up so that he was not completely slouched over. While Usoalii was holding [Victim 1], Shah went through [Victim 1] pockets, whilst the other three were all watching on. Usoalii pulled [Victim 1’s] jacket, which caused [Victim 1] to get up on his feet. As that was happening, his jacket was pulled up and over his head. [Victim 1] started to walk away.
At that point Mataia struck [Victim 2] over the head and then walked away towards [Victim 1]. At the same time Jeremaia and Sione started punching [Victim 2]. Sione walked away towards [Victim 1]. Jeremaia continued to punch [Victim 2] whilst [Victim 2] was in a sitting position up against a brick wall. Jeremaia walked away and [Victim 2] stood up with his hands raised above his head.
Mataia, Shah and Usoalii then followed [Victim 1], Shah ran up behind [Victim 1] and punched [Victim 1], which knocked him unconscious and he fell to the ground face first; [Victim 1] lay motionless.
At that point Mataia ran up and kicked [Victim 1] to his ribs on the right- hand side. Shah started going through [Victim 1] pockets, Sione and Jeremaia and Usoalii walked towards Shah and [Victim 1], watching what was happening. Usoalii then pointed in the direction of [Victim 2], [Victim 2] still had his hands up. While [Victim 1] lay motionless, Sione stood over him and went through his pockets. Whilst that was occurring, Mataia stood next to [Victim 1]. Usoalii was standing next to Shah, Mataia started to walk up the road in the direction where they were first walking. Shah stopped going through [Victim 1] pockets and stomped on [Victim 1] head twice and then kicked him to the head. Mataia and Usoalii then began to walk off, but they turned and were facing [Victim 1] when Shah was attacking him.
Sione walked off in a backwards motion so he was facing [Victim 1]. Jeremaia then kicked [Victim 1] in the head and then walked off. [Victim 1] remained motionless in the middle of the road.
All the offenders then approached [Victim 2], who was standing nearby. Jeremaia ran towards [Victim 2] and picked up a beer bottle and hit [Victim 2] over the head with the beer bottle. Shah ran in and punched [Victim 2] to the head and, at the same time, Mataia punched [Victim 2] to the head also. Usoalii punched [Victim 2] in the stomach. Sione was standing by with the others. [Victim 2] managed to get away from the group and started to run in the same direction from whence he came. The five offenders walked in the same direction and Sione started running after [Victim 2], Sione caught up with him and stopped him. The group then walked up to [Victim 2] and he was surrounded. He was assaulted and knocked to the ground.
[Victim 2] was sitting on the roadway and Shah kicked him to the head, causing [Victim 2] to fall backwards onto the roadway, where he remained unconscious.
Whilst that was happening, [Victim 1] rolled onto his back, he managed to sit up, as the five offenders walked off. [Victim 1] got to his feet and he walked towards [Victim 2]. [Victim 2] was making groaning noises and [Victim 1] tried to assist him by rolling him onto his side. [Victim 1] stayed with [Victim 2] and the police and ambulance arrived a short time later.[11]
[11] Exhibit AA7 p.AB82-AB85.

Both victims suffered significant injuries and were hospitalised. Personal items and cash were stolen from them.
The Court described the injuries as follows:
[Victim 1] was taken to hospital and complained of pain in the left chest wall, infra axillary around the fourth rib region, nasal bleeding and nasal bridge tenderness. He was found to have sustained the following injuries, grazed abrasions around the left orbital region, grazed abrasions around the left eyebrow, tenderness of the infra orbital region, a CT brain scan showed left peri-orbital swelling, a “reasonably significant” abrasion to the forehead and left cheek, bruising around the left eye and neck pain.
[Victim 2] was also conveyed to hospital and he was found to have sustained a right scalp haematoma, facial bruising, bruising and/or abrasion of the left ear, a left parietal haematoma on the upper half of the skull, swelling of the left zygoma, a left partial haematoma on the upper half of the skull, swelling of the left zygoma and bruising under the left eye. A CT scan disclosed two small areas of haemorrhage within the brain, located in the right front temple lobe and the right temple lobe. He was admitted and he remained in hospital for three days.[12]
[12] Exhibit AA7 p.AB86.
When sentencing Mr Usoalii English J. said:
Junior Usoalii is 19 years of age. He too gave evidence. He was interviewed by the Community Corrections Service and a presentence report tendered. In 2012 he was placed on a section 33(1)(b) bond for 12 months for an offence of attempted aggravated break and enter in company. As I have already noted, he was in company with Rhakim Mataia. The magistrate who imposed conditions upon this particular offender obviously had foresight. One of those conditions was that this offender was not to associate with Rhakim Mataia. Unfortunately that was only for a 12 month period. If this offender had taken heed of the magistrate’s advice and disassociated himself altogether from his co-offender, he may well not be in the situation he finds himself in today, and that is facing sentence for two very serious criminal offences involving a high level of violence upon two innocent victims.
He was also placed on a section 33(1)(b) bond for 15 months for an offence of affray. When giving evidence, he too told bald faced lies, such as he could not recall who his co-offender was in the break and enter matter in company. Well it is more than obvious who his co-offender was in that offence, it was the same co-offender he finds himself sitting in the dock with once again. He says he is remorseful for what he has done and what “families” have had to go through. He is really sorry for what he did, for hurting the victims.
With regard to [Victim 1], his role was to lift the already injured victim up from a slouched position on the roadway so that the others could go through his pockets and then to attempt to remove the victim’s jacket and then to follow him as he attempted to get away, at which point he was then struck and left motionless on the road. He stood next to the unconscious victim whilst his so-called friends viciously continued to assault him as he lay unconscious on the roadway. His role then was to punch the second victim to the stomach, after he had been struck to the head with a beer bottle, following on punches being thrown to the head by one of the other co-offenders.[13]
[13] Exhibit AA7 p.AB93-AB95.
When Mr Usoalii was interviewed by the Police he initially minimised his role in the attacks on the victims and lied to the Police by telling them that one of the victims had pulled a knife on him.[14]
[14] Exhibit AA7 p.AB88.
The assault committed on 17 November 2015 whilst Mr Usoalii was in prison
In sentencing Mr Usoalii the Court said:
I have to make the comment that an assault of this nature whilst in custody and this is what it is, it’s an assault by this accused against another inmate of a correctional centre in circumstances where actual bodily harm was involved. Based on the facts it is an offence whereby there was little to no provocation in circumstances where it simply can only be viewed as violence for the sake of it. In the custodial setting it is inexcusable because of – it is inexcusable in any setting, but also the difficulties it causes for the proper administration of what is already a difficult situation and that is the administration and discipline required in a correctional centre. The Court can only consider this to be a very serious matter.
In relation to that, in my view, the circumstances of what can only be described as “the attack” has to be viewed as a serious offence. The temptation for random, pointless violence in a custodial setting is very high because of the nature of the environment and therefore the message must be clear that it will not be tolerated and it will only result in an increase in the time spent in custody for the person involved. There is no reason whatsoever to backdate the offence to ensure that there is any concurrency with the current offence. It is an appropriate matter whereby a custodial sentence should be imposed.[15]
[15] Exhibit AA7 p.AB10-AB11.
Her Honour Magistrate Trad described this offence as “serious”. I am satisfied that it is appropriate also to treat the offence as “serious” for the purposes of the Migration Act.
The assault in prison involving 10 other inmates 31 March 2016
The separate incident of assault which caused Mr Usoalii to be disciplined while in custody also involved physical violence. That conduct is also to be regarded as “serious”.
Discussion
It was put on behalf of Mr Usoalii that “the nature of the offending was clearly the pattern of behaviour of a young person who was under stress and not coping with factors in their family and personal life around them and being overwhelmed”.[16]
[16] Transcript 20/02/18 p.60.
I accept the evidence of Mr Usoalii that his father was violent towards him, that as a 16 year old he had to deal with the death of his father and that he became a father himself when he was 17. I accept also the evidence of Mrs Usoalii (Mr Usoalii’s mother) that upon the death of his father Mr Usoalii was expected to become the leader and head of the extended family. However I am satisfied that he did not fulfil this role and that it has been assumed by Mrs Usoalii.
For the purposes of this application, I accept the argument that these background factors are relevant to the consideration of the nature of the offending. However, they are not such as to reduce the seriousness of the conduct, to which I have already referred. Although it is appropriate to give less weight to offences committed as a juvenile, Mr Usoalii was 18 when he committed the robbery offences and the very serious assaults which accompanied them. Unfortunately he did not appear to have learned from the experience of being jailed for those offences when he committed another serious assault in September 2015. The latter offence was of such seriousness that not only was he disciplined within the prison system but he was sentenced to a further period of imprisonment by the Court.
F1.2. The risk to the Australian community should Mr Usoalii commit further offences or engage in other serious conduct
The Direction states that I “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”.[17]
[17] Paragraph 13.1.2(1).
There are also considerations to which regard must be had 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).[18]
[18] Paragraph 13.1.2(2).
Evidence of Mr Usoalii
From the birth of his son in April 2013 until Mr Usoalii was taken into custody on 5 June 2014 he lived with Ms E’e and his son at Mrs Usoalii’s home. Should he be released to live in Australia Mr Usoalii intends to resume living with Ms E’e and his son. He plans to gain employment as a scaffolder and to support his family. He commenced, but did not complete, his apprenticeship as a painter before he was imprisoned. He is unsure if he would be able to complete this apprenticeship if he wished to do so.
Mr Usoalii wishes to remain in Australia so that he can provide for his family, help care for his son and be a role model for him. He recognises the stress he has placed on his family and said that he would never do anything to put himself or his family back in the position they now find themselves.[19] In his statement he said that for this reason he believes that there is no risk that he will re-offend.[20]
[19] Exhibit AA8 para.16.
[20] Exhibit AA8 para.16.
I accept Mr Usoalii’s evidence referred to in the preceding two paragraphs and I am satisfied that he genuinely wishes to provide for his son both emotionally and physically to the best of his ability. I accept also that he does not intend to commit further offences and that he intends to remain sober. He has not been involved in violence during his 15 months in immigration detention.
Mr Usoalii said that he is remorseful for the violence he inflicted on his victims.[21]
[21] Transcript 28/02/18 p.18, 26; exhibit AA8 para.12.
He attended an alcohol and drugs program while he was in prison. This course involved group discussions for two hours per week for three or four months.[22] He also took part in Pacific Islander Church programs[23] and courses in automotive engineering, literacy, mathematics and first aid. He was unable to take part in an anger management course by reason of the limited time available before his release on parole. Generally he described his time in prison as “a big wakeup call”.[24]
[22] Exhibit AA8 para.30.
[23] Exhibit AA2 p.35.
[24] Transcript 28/02/18 p.27.
Evidence of Ms E’e, Mr Usoalii’s partner
In her statement made 15 November 2017, Ms E’e said that while Mr Usoalii was in gaol she noticed that he had changed “for the better”.[25] She believes he will not consume alcohol or re-offend if given another chance, as he has matured and now understands how his actions impact on others.
[25] Exhibit AA5.
Evidence of Mrs Usoalii, Mr Usoalii’s mother
Mrs Usoalii provided statements[26] and gave evidence.
[26] Exhibits AA9 and AA10.
Mrs Usoalii believes her son will not re-offend as he has matured and is very family oriented.[27] She has observed that he has changed his attitude and outlook.[28] He will respect and obey her.
[27] Exhibit AA10 para.21.
[28] Transcript 28/02/18 p.49.
Statement of Ms Feaunati, Youth Worker
Ms Feaunati is a Youth Worker and also the aunt of Mr Usoalii. She provided a statement dated 15 December 2016;[29] she did not give evidence.
[29] Exhibit AA7 p.AB2.
Ms Feaunati arranged for Mr Usoalii to live with her and her family in 2011. At the time Mr Usoalii was not attending school and was experiencing a number of difficulties in his life. During that time he completed his Year 10 certificate and, in Ms Feaunati’s words “made a complete turnaround”.
Ms Feaunati expressed the following view:
Being a youth worker I have had the great opportunity to know when a young person is legitimate or not when they have made a change in their lives and I can say this Junior has a heart of caring and understanding he loves his son he loves his mother and siblings. To deny Junior of reinstating his Visa is denying his son the benefit of knowing his father. In this we may have this cycle repeat itself to have three generations of sons grow up with no Father.
Statement of Father Thompson, Parish Priest
Father Thompson provided a statement dated 23 January 2016.[30] He did not give evidence.
[30] Exhibit AA7 p.AB4.
Father Thompson believes that Mr Usoalii:
is sincerely remorseful for the pain he has caused to those he has injured as well as the shame he has brought on himself and to his family and community for in breaching the conditions regarding his visa, he has jeopardised the privilege of been [sic] able to stay in Australia.
In the opinion of Father Thompson:
I know that if he continues to be vigilant with the support of his family, our parish and Samoan Community on his rehabilitation and attends programs offered for him to reflect on his actions which are not just a matter of concern for him but also affects his future and his family, that he is unlikely to re-offend.
Discussion
Regrettably, Mr Usoalii has shown a propensity to act violently towards others since his first offences involving physical violence were committed in 2014. Should he repeat such conduct there is a risk of serious injury and death to members of the Australian community.
Mr Usoalii referred to his problem with alcohol as a cause of his conduct towards the two innocent victims of the gang attack. I do not regard this as a mitigating factor. When he appeared in the Children’s Court in November 2012 he was ordered to undertake alcohol and drug counselling. There is no detailed evidence as to the nature of this counselling or that it had any beneficial effect, other than Mr Usoalii found it helpful. However he resumed his pattern of excessive consumption of alcohol within a very short time. When he gave evidence in February 2018 Mr Usoalii did not elaborate on this issue, despite having the opportunity to do so.
Further the Children’s Court also directed Mr Usoalii not to associate with his co-offender. Although this order had expired at the time he committed the violent robberies, I note that one of Mr Usoalii’s co-offenders in the violent robberies was his co-offender in the Children’s Court matter.
I have also taken into account that, while he was in prison, Mr Usoalii was offered little by way of rehabilitation programs or courses designed to reduce the risk of re-offending. He said that he took part in a drug and alcohol course over a period of three months, for two hours per week. Apart from Mr Usoalii’s statement that he found it beneficial, I have no evidence of the effectiveness or otherwise of this course or the content of it, other than it involved group discussion.
Notwithstanding such treatment as he did receive, Mr Usoalii was convicted of a further violent offence while in custody. This offence took place in November 2015, only 18 months after the offences for which he was imprisoned. This time he was not affected by alcohol. This attack was of sufficient seriousness to cause him to be charged with a criminal offence and was described by the Sentencing Magistrate as “violence for the sake of it”.[31] In addition in March 2016 he was disciplined for another act involving physical violence while in prison.
[31] Exhibit AA7 p.AB10.
Mr Usoalii attributes his involvement in the gang assaults and robberies to “a drunk night”.[32] The transcript of the judgment of English J. records Mr Usoalii having told police that when he drinks alcohol “I lose my cool when something happens”.[33] Although Mr Usoalii told me that he does not intend to consume alcohol if he is released into the community, in the absence of any assistance by way of treatment, other than the one course in prison, I cannot be reasonably satisfied that this will be the case. Unfortunately Mr Usoalii has not undertaken any counselling in relation to anger management.
[32] Transcript 24/01/17.
[33] Exhibit AA7 p.AB88.
I have taken into account that Mr Usoalii will continue to be subject to parole supervision until September 2018 and that as part of this supervision he is not permitted to consume alcohol and he may be required to undertake further courses. However it is only a short time until this supervision comes to an end and I am not satisfied that it is likely that he will be able to undertake any further counselling in that time.
I am concerned also that when he gave evidence in February 2018, Mr Usoalii still did not appear to appreciate the gravity of the assaults inflicted upon the victims of the robberies. His description of his offending as “I had a fight with these two blokes … I was drunk” is in stark contrast to the vicious and unprovoked attack described by the Court when it gave its reasons for sentence. It is clear that the victims did not fight with Mr Usoalii. They were not given the opportunity to do so. In fact one victim was prevented from going to the aid of his companion and on two occasions Mr Usoalii followed his victims as they attempted to escape the violence being inflicted on them.
Mrs Usoalii believes that Mr Usoalii will not re-offend. I accept her as an honest witness. However her belief based on her opinion that Mr Usoalii will respect her and obey her wishes as his mother is not borne out by what has happened in the past. Furthermore the changes in his attitude which she says she has noticed are yet to be tested in the situation of his being released into the community at large with access to alcohol.
Similarly, Ms E’e believes that Mr Usoalii has changed and will not re-offend. Again the extent to which Mr Usoalii has changed is yet to be tested should he be released and allowed to remain in Australia.
I have considered the opinion of Ms Feaunati who has the benefit of her experience as a Youth Worker and being a member of Mr Usoalii’s family and well acquainted with him. However, unfortunately Mr Usoalii committed the serious offences of which he has been convicted after he had the benefit of Ms Feaunati’s care. Although she believes he has changed there is little evidence to support this view. I have taken into account also the statement of Father Thompson which indicates that Mr Usoalii may receive some support from his Church. However the effectiveness of any such support depends upon his willingness to receive it.
I have taken into account that English J. in the District Court found that Mr Usoalii had prospects for rehabilitation. She referred to his having had paid employment in the past, the support of his family and his connection with the Pacific Islander Church.
Referring to both offenders English J. said:
They both need to address their abuse of alcohol which has commenced in a significant way at a young age resulting in the commission of serious criminal offences. If they are able to successfully rehabilitate themselves, then the likelihood of them re-offending will be significantly reduced.[34]
[34] Exhibit AA7 p.AB98.
I note that Mr Usoalii was released on parole on 3 December 2017.[35]
[35] Exhibit AA6.
In all the circumstances I am satisfied that there is a significant risk that if Mr Usoalii is able to return to the Australian community he will commit further offences involving physical violence. Such offences would put members of the community at risk of serious personal injury and death. As the seriousness of the risk is high so the community’s tolerance of the risk is low.
F2. Second primary consideration: best interests of minor children in Australia affected by the decision
There are four minor children in Australia who may be affected by a decision not to revoke the cancellation of Mr Usoalii’s visa. They are his four year-old son, his 12 year-old brother and his two young nephews.
I accept Mr Usoalii’s evidence that he has kept in contact with his son during his imprisonment and detention. Except when he was in Junee Correctional Centre for the year prior to his release, family members brought his son to visit Mr Usoalii on a fairly regular basis. In addition Mr Usoalii speaks to his son by telephone each week.
In the great majority of cases a son will benefit from a long-term relationship with his father. Ideally this relationship will include living with his father and being supported by him.
I am satisfied that on balance it would be in the son’s best interests that the cancellation of his father’s visa be revoked. The Minister concedes that this is so. If Mr Usoalii is permitted to return to the wider Australian community his son will be able to live with his parents, continue to attend his present school and continue regular contact with his extended family. However, in reaching my conclusion I have taken into account that Mr Usoalii’s return to New Zealand would not prevent his maintaining contact with his son and providing him with financial support.

In relation to his 12 year-old brother, Mr Usoalii said that he has a good relationship with him and that he comes to visit him in Villawood regularly. Mr Usoalii acknowledges that his mother provides the major parenting role for his brother.
I am satisfied that it is in the best interests of Mr Usoalii’s brother that the cancellation of Mr Usoalii’s visa be revoked. I make this finding on the basis that the youngest of the brothers would benefit from more regular face-to-face contact with his older brother. In addition Mr Usoalii could assist his mother in the day-to-day care of his youngest brother.
Mr Usoalii also referred to his two nephews, aged five or six years and two or three years. He said that he wanted to be able to spend time with them. Both children are living with their parents in Australia. They have visited Mr Usoalii in Villawood “every now and then”.[36] I am not satisfied that either of them will be adversely affected should Mr Usoalii be required to leave Australia.
[36] Transcript 2/02/18 p.42.
F3. Third primary consideration: expectations of the Australian community
Clause 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
It was argued on behalf of Mr Usoalii that several factors would cause the Australian community to expect that Mr Usoalii be shown leniency and be given the chance to remain in Australia:
·his residing in Australia since a young age and his lack of ties to New Zealand;
·his remorse for the harm caused to others and his commitment to not re-offending;
·his having lived in Australia for most of his life;
·his offending as a young person in mitigating circumstances;
·his efforts to rehabilitate himself and the resolution of his problems in adulthood;
·the failure to warn him that his visa may be cancelled;
·the interests of his very young son who has suffered as a result of his father’s long term detention;
·the needs of his partner;
·his mother’s needs with respect to her minor son, her poor health, the loss of her husband and her own age;
·the lack of warning that his visa may be cancelled;
·the existence of parole supervision until September 2018.[37]
[37] Transcript 28/02/18 p.67 and Applicant’s Submissions dated 27 December 2017.
It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be strongly differing views as to whether Mr Usoalii should be permitted to remain in Australia. However, having regard to the violent nature of his offending against helpless victims, that it involved the abuse of alcohol which has not been adequately addressed and that he engaged in repeated offending, I have decided that the Australian community would expect that Mr Usoalii would not continue to hold a visa entitling him to reside in this country. The community would be less tolerant of the risk of re-offending by reason of the seriousness of Mr Usoalii’s past offences. I am of the view that this would be so even taking into account the factors referred to in the preceding paragraph.
F4. Other considerations set out in Direction No. 65
Clause 14 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. 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.
F4.1. International non-refoulement obligations
Australia does not have any non-refoulement obligations relevant to this application.
F4.2 Strength, nature and duration of ties to Australia
Clause 14.2 provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Evidence of Mrs Usoalii
Mrs Usoalii said that she needed Mr Usoalii to remain in Australia to look after her and his extended family as he is the eldest son. He has no family in New Zealand to assist him should he return to that country. However she went on to say that should Mr Usoalii be required to return to live in New Zealand she would return to New Zealand with him. She said also that his sisters and their families may choose to live in New Zealand also by reason of their close ties with her.
Evidence of Ms E’e
In an undated statement,[38] filed in the Tribunal in November 2016, Ms E’e says that it will be better for their son and herself if Mr Usoalii is able to live in Australia. She referred to “our future” which suggested that there was some prospect that she and Mr Usoalii may renew their relationship if he is free to do so.
[38] Exhibit AA4.
In her statement dated 15 November 2017[39] Ms E’e said that she and Mr Usoalii have decided to “give our relationship another chance when he gets out of gaol”.[40]
[39] Exhibit AA5.
[40] Exhibit AA5.
Ms E’e did not give evidence on either of the occasions when there was an opportunity for her to do so.
Discussion
Mr Usoalii has lived in Australia since he was six years old. He has lived most of his life here and has been educated here. All of his family are permanent residents of Australia. He has no family members residing in New Zealand, other than some distant relatives with whom he has no contact.
Mr Usoalii, Ms E’e and their son lived with Mrs Usoalii prior to Mr Usoalii being imprisoned. Mrs Usoalii said that she would be happy for Mr Usoalii to return to live in her home if he is released from detention.
I have also taken into account the past relationship Mr Usoalii had with his aunt, Ms Feaunati, who supports his being able to return to live in the Australian community.
I am satisfied that Mr Usoalii has ties to Australia arising from his ties to his family and his church and the fact that he has lived here since he was six.
Mr Usoalii was 18 years old when he was imprisoned. He has made a very limited positive contribution to the Australian community as he has spent a considerable amount of time in custody or in immigration detention.
F4.3. Impact on Australian business interests
I am satisfied that a decision not to revoke the cancellation of Mr Usoalii’s visa will not have a relevant impact on Australian business interests.
F4.4. Impact on victims
I do not have sufficient evidence to assess the impact which a decision not to revoke the cancellation would have on the victims of Mr Usoalii’s behaviour and their families.
F4.5. Extent of impediments Mr Usoalii may face if he is removed from Australia
Although Mr Usoalii is a citizen of New Zealand he does not have any family there nor does he have any connection to any particular community. Undoubtedly he would find it difficult to establish himself in a new life, including finding employment to enable him to support himself and his son. On the other hand he would be returning to a country which has a similar culture and government support systems to those of Australia and it is likely that he would have the company of at least some of his family members who presently reside in Australia.
Mr Usoalii’s lack of connection with New Zealand would cause him some difficulties in settling in that country. To a limited extent this consideration does weigh in favour of the original decision being revoked.
Counsel for Mr Usoalii submitted that this consideration was not relevant. Nevertheless I have taken it into account.
F5. The balancing exercise
Although all of the above considerations are to be taken into account, in this application two considerations each have particular weight – the need to protect the Australian community from criminal activity such as that engaged in by Mr Usoalii and the impact which Mr Usoalii’s removal from Australia would have on his family and, in particular, on his young son.
I am satisfied that there is a reasonable likelihood that Mr Usoalii’s son will not be separated from his father in the event that Mr Usoalii has to return to New Zealand. This reduces the weight to be given to this consideration. Mr Usoalii said that Ms E’e and their son would accompany him to New Zealand if he was required to leave Australia,[41] although he did say that he had not discussed this question with her. It is difficult to understand why he believes that this would occur if there has been no discussion on such an important issue concerning the future of their son.
[41] Transcript 28/02/18 p.40.
Although Ms E’e provided a statement dated 15 November 2017[42] that it would be in the best interests of their son that Mr Usoalii remain in Australia she did not give evidence before me. She did not refer to the possibility of her moving to New Zealand with their son to live with Mr Usoalii if this became the only means by which the family could live together.
[42] Exhibit AA5.
If Ms E’e and their son were to live with Mr Usoalii in New Zealand this would significantly reduce the effect on the son of separation from his father.
I have given consideration to the statement of Ms Feaunati. It clearly had been carefully prepared and addressed some of the problems which may have contributed to Mr Usoalii’s criminal behaviour. Further, the statement of Father Thompson indicates that there may be some support available for Mr Usoalii should he be able to continue to reside in Australia.
Having considered all the matters to which I have referred, I have come to the conclusion that the risk to the Australian community should Mr Usoalii be able to continue to live in this country is such as to outweigh the interests of minor children and other members of his family and any impediments he may experience in returning to New Zealand.
In reaching this conclusion I have taken into account that the assaults which led to his imprisonment were vicious and inflicted significant injuries on the victims. The nature of the attacks was such that the victims could have been killed. On Mr Usoalii’s own evidence his ability to control his actions was affected by alcohol. He has not had the benefit of anger management counselling and only limited access to assistance with dealing with the responsible consumption of alcohol. Despite Mr Usoalii’s best intentions, I am not satisfied that he has undertaken sufficient rehabilitation to enable me to be satisfied that the risk of his re-offending is an acceptable risk.
I have considered that until September 2018 Mr Usoalii would be subject to parole supervision and that this may include further rehabilitation treatment. Unfortunately I cannot be confident that this will take place. It is likely that after September this year Mr Usoalii would be free of the restraints of supervision.
The risk that his past conduct could be repeated is too great to allow Mr Usoalii the privilege of remaining in Australia.
G. APPLICATION FOR STAY ORDER
At the conclusion of the hearing the Applicant made an oral application for an order in the following terms:
The Respondent be restrained from taking steps to remove the Applicant from Australia until such time as 35 days after this Tribunal has determined his application for review of a decision not to revoke the mandatory cancellation of his visa.[43]
[43] Transcript 28/02/18 p.75.
This application was made pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth). After considering additional written submissions made on behalf of the Applicant I have decided that the order sought should not be made.
As the issue was not fully argued before me I am not satisfied that the Tribunal has jurisdiction to make the order requested. Even if the Tribunal does have jurisdiction I would not be satisfied that it would be appropriate to make the order bearing in mind the requirements of subsection 41(2) of the Act. Mr Usoalii has remained in immigration detention since he first applied to the Tribunal in November 2016 and there is no evidence to suggest that it is likely that he will be deported prior to the finalisation of these proceedings.
H. CONCLUSION
The reviewable decision, being the decision of the delegate of the Minister for Immigration and Border Protection made 14 November 2016 not to revoke the cancellation of Mr Usoalii’s Subclass 444 (Special category) visa, will be affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President
J W Constance.

...............[sgd].........................................................
Associate
Dated: 3 May 2018

Date of hearing: 28 February 2018

Solicitors for the Applicant: Ms M McCabe, Salvos Legal Humanitarian

Solicitors for the Respondent: Mr L Dennis, Minter Ellison

[2018] AATA 1112

3 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	28 February 2018
Solicitors for the Applicant:	Ms M McCabe, Salvos Legal Humanitarian
Solicitors for the Respondent:	Mr L Dennis, Minter Ellison