Usoalli and Minister for Immigration and Border Protection (Migration)

Usoalli and Minister for Immigration and Border Protection (Migration) [2017] AATA 260 (3 March 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6414
Re:Sila Usoalli
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal: Deputy President J W Constance
Date:3 March 2017
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].......................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – visa cancellation – character test – protection of the Australia community – serious conduct – robbery in company – assault – best interests of minor children – expectations of Australian community – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501(3A), 501CA
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Ministerial Direction No. 65 issued 22 December 2014
REASONS FOR DECISION
Deputy President J W Constance
3 March 2017
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 September 2014) to be served concurrently. The non-parole period in each case was two years.
On 9 June 2016 the Minister for Immigration and Border Protection cancelled Mr Usoalii’s visa (“the cancellation decision”) as he was satisfied that Mr Usoalii did not pass the character test set out in the Migration Act 1958 (Cth) as he had 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 cancellation decision. Mr Usoalii has applied to the Tribunal to review the Minister’s decision not to revoke the cancellation decision (“the reviewable decision”).
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 20 years old and a citizen of New Zealand. He has lived in Australia with his family since June 2002. He previously held 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. He has two older sisters, six uncles, six aunts and two nephews living in Australia.
Mr Usoalii also has a three year old son who is being cared for by the child’s mother, Ms E’e. Since September 2016 Ms E’e and their son have been living with Mrs Usoalii in her home.
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 R1 p.62.
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. On each count he was sentenced to imprisonment for four years with a non-parole period of two years; the sentences were served concurrently.[3]
[3] Exhibit R1 p.62.
Disciplinary action and conviction while Mr Usoalii was in prison
Whilst in prison Mr Usoalii was involved in a number of incidents which brought him to the attention of authorities. He was disciplined for two incidents of assault which took place on 17 November 2015 and 31 March 2016.[4] He described these incidents as “just part of prison life”.[5]
[4] Exhibit R1 p.65.
[5] Transcript 24/01/17.
In November 2015 Mr Usoalii punched another inmate following a dispute as to the inmate’s place in a queue to use a telephone. 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 three months to commence on the expiration of his non-parole period. The sentence expired on 3 December 2016.
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.
Mr Usoalii was released from prison on 3 December 2016 and 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.[7] Primary considerations should generally be given greater weight than the other considerations.[8]
[7] Direction 65, paragraphs 6.2(3) and 8(1).
[8] 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.[9]
F. CONSIDERATION
[9] [2016] FCA 1166 at para.38.
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 three assaults, all of which involved significant physical harm to others, is very serious.
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] hands. Jeremaia, Usoalii and Mataia started to walk away. Shah put his hand in [Victim 1] 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] 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] 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] pot 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 R1 p.67-70.

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 R1 p. 71.
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 R1 p.78-80.
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 R1 p.73.
Her Honour Magistrate Trad described the offence committed by Mr Usoalii while in prison as “serious”. I am satisfied that it is appropriate also to treat the offence as “serious” for the purposes of the Migration Act.
The two separate incidents which caused Mr Usoalii to be disciplined while in custody also involved physical violence. That conduct is also to be regarded as “serious”.
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.”[15]
[15] 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).[16]
[16] 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 painter and to support his family. He commenced, but did not complete, his apprenticeship before he was imprisoned.
Mr Usoalii wishes to remain in Australia so that he can help care for his son and provide a role model for him.
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.
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[17]; she did not give evidence.
[17] Exhibit A1.
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[18]. He did not give evidence.
[18] Exhibit A2.
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.
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 evidence as to the nature of this counselling nor that it had any beneficial effect. Further the Children’s Court also directed Mr Usoalii not to associate with his co-offender. Although this order had expired 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 Mr Usoalii was offered little by way of courses designed to reduce the risk of re-offending while he was in prison. He said that he took part in a Drug and Alcohol Awareness course over a period of three months, being engaged in that course for two hours per week. I have no evidence of the effectiveness or otherwise of this course
Notwithstanding the treatment which was provided, Mr Usoalii was convicted of a further violent offence while in custody in November 2015. 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”.[19] In addition he was disciplined for other violent acts while in prison.
[19] Exhibit R2.
Mr Usoalii attributes his involvement in the gang assaults and robberies to “a drunk night”.[20] 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.” [21]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 I cannot be reasonably satisfied that this will be the case.
[20] Transcript 24/01/17.
[21] Exhibit R1 p.73.
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 left 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.
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 put members of the community at the real 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.
F.2. Second primary consideration: best interests of minor children in Australia affected by the decision
There are several minor children in Australia who may be affected by a decision not to revoke the cancellation of Mr Usoalii’s visa. By far the most important child to be considered is Mr Usoalii’s three year-old son.
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 would speak to his son by telephone each week.
I accept that 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. On the other hand, if Mr Usoalii was to return to his criminal behaviour he would provide a very poor role model for his son and no doubt he would again be compulsorily separated from his son for a lengthy period.
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. However, in reaching this 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.
Mr Usoalii also referred to his two nephews, aged four or five years and one year. He said that he wanted to be able to spend time with them. Both children are living with their parents in Australia. They have not had contact with Mr Usoalii since he was imprisoned in 2014. There is no evidence to suggest that either of them will be adversely affected should Mr Usoalii be required to leave Australia.
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 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, that on one occasion 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 continue to reside in this country.
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-refoulment 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, Mr Usoalii’s mother
Mrs Usoalli provided a statement[22] and gave evidence.
[22] Exhibit A5.
Mrs Usoalii said that she needed Mr Usoalii to remain in Australia to look after her and his family. He has no family in New Zealand to assist him should he return to that country.
Evidence of Ms E’e, Mr Usoalii’s former partner
In her statement[23] Ms E’e says that it will be better for their son, Mr Usoalii and herself if Mr Usoalii is able to live in Australia. She refers to “our future” which suggests that there is some prospect that she and Mr Usoalii may renew their relationship if he is free to do so. Ms E’e did not give evidence so I am unable to reach a conclusion as to the likelihood of this happening.
[23] Exhibit A3.
Discussion
Mr Usoalii has lived in Australia since he was six years old. All of his family are permanent residents of Australia. He has no family members residing in New Zealand.
Mr Usoalii, Ms E’e and their son lived with Mrs Usoalii prior to Mr Usoalii being imprisoned. Ms E’e and the son live with Mrs Usoalii presently. 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.
Mr Usoalii was imprisoned when he was 18 years old. There is no evidence that he has made a positive contribution to the Australian community.
I am satisfied that Mr Usoalii has strong ties to his family members in Australia; I am not satisfied that he has strong ties to the Australian community. Further, he has made very limited positive contribution to the Australian community as he has spent a considerable amount of time in custody or in immigration detention. That time has been at significant expense to the Government, which detracts from any positive contribution he may have made. These matters lessen the weight to be given to this consideration.
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, other than the evidence as to the serious injuries suffered by the victims of the assaults.
F4.6. 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.
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 cancellation decision being revoked.
F5. The Balancing Exercise
In this application two considerations each have substantial weight – the need to protect the Australian community from criminal activity such as that engaged in by Mr Usoalii in the past and the impact which Mr Usoalii’s removal from Australia would have on his family and, in particular, on his young son.
I have given careful consideration to the statement of Ms Feaunati. She provided a statement which 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. However 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 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. 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. The risk that this conduct could be repeated is too great to allow Mr Usoalii the privilege of retaining his visa.
G. 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 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...................................[sgd].....................................
Associate
Dated: 3 March 2017

Date(s) of hearing: 24 January 2017

Applicant: In person

Solicitors for the Respondent: Minter Ellison

[6] Exhibit R2.

[2017] AATA 260

3 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	24 January 2017
Applicant:	In person
Solicitors for the Respondent:	Minter Ellison