Vaofusi and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2585

Vaofusi and Minister for Immigration and Border Protection (Migration) [2017] AATA 2585 (7 December 2017)

Division:GENERAL DIVISION

File Number:           2017/0003

Re:Mr John Vaofusi

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:7 December 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Ms Anna Burke, Member

MIGRATION – non-revocation of mandatory cancellation of visa – 12 month term of imprisonment – applicant does not pass character test in s 501(6)(a) – applicant an unacceptable risk to the Australian community – minor children in Australia – strong ties to Australia – impediments if applicant removed – decision under review affirmed

LEGISLATION

Migration Act 1958(Cth); ss 499, 500, 501, 501CA

Migration Regulations 1994 (Cth); reg 2.52

CASES

Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 337
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

SECONDARY MATERIAL

Administrative Appeals Tribunal, Guideline for Persons Giving Expert and Opinion Evidence, 30 June 2015

Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014

REASONS FOR DECISION

Ms Anna Burke, Member

7 December 2017

BACKGROUND

1. On 2 March 2015 a delegate of the Minister for Immigration and Border Protection (the Minister) cancelled Mr John Vaofusi’s Class TY Subclass 444 Special Category (Temporary) Visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth) (the Act). This was a mandatory cancellation as the delegate was satisfied Mr Vaofusi did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c). This was because he was found to have a substantial criminal record by virtue of a 12 month term of imprisonment he had received on 18 September 2014 and because he was serving a sentence of imprisonment on a full time basis at the time. A notice dated 2 March 2015 was sent to Mr Vaofusi outlining the mandatory cancellation of his visa and inviting him to make representations to the Minister about the revocation of the mandatory cancellation (see ss 501CA(3)(b) & 501CA(4)(a) of the Act). On 24 May 2016, Mr Vaofusi was issued with a re-notification of the 2 March 2015 cancellation of his visa. That re-notification once again invited Mr Vaofusi to make representations to the Minister about revocation of the mandatory cancellation.

2. On 13 April 2016 Mr Vaofusi lodged an application under s 501CA(4) seeking revocation of the decision to cancel his visa. On 8 December 2016 a delegate of the Minister made a decision not to revoke the mandatory cancellation of Mr Vaofusi’s visa because the delegate was not satisfied that Mr Vaofusi passed the character test and because there was not another reason why the original decision should be revoked.

3. In a letter to the Minister dated 30 May 2016, Mr Vaofusi acknowledged that he had been re-notified of the mandatory cancellation on 24 May 2016 and asked that his revocation request of 13 April 2016 be treated as his active revocation request. Because of the re-notification of the mandatory cancellation and the letter from Mr Vaofusi to the Minister, Mr Vaofusi’s revocation request was made within the 28 day time limit required by s 501CA(4)(a) of the Act in combination with regulation 2.52 of the Migration Regulations 1994. As a result, the delegate of the Minister who considered the revocation request had jurisdiction. In turn, with the delegate’s decision not to revoke made within power, the Tribunal has jurisdiction to hear the application for review of that decision (s 500(1)(ba) of the Act).

4. On 24 December 2016 the Administrative Appeals Tribunal (the Tribunal) received an application from Mr Vaofusi for a review of the delegate’s decision. At the time, Mr Vaofusi was being held at North West Point Immigration Detention Centre (NWPIDC) on Christmas Island. He was subsequently transferred to Maribyrnong Immigration Detention Centre to facilitate his attendance at the hearing of his application in Melbourne. Mr Vaofusi was represented at the hearing by Mr Greg Hughan of counsel instructed by Ms Riana Brims and Mr Kurt Esser, from Esser Legal. Mr David Brown, solicitor advocate from the Australian Government Solicitor, appeared for the Minister. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support oral evidence. Documents received under summons from Victoria Police and Corrections Victoria were also accepted into evidence.

5. Mr John Vaofusi is a 27 year-old New Zealand National of Samoan ethnicity who migrated to Australia as a 13 year-old in 2003 with his parents and five siblings. Mr Vaofusi spent his early childhood in New Zealand before moving to Samoa for two years at the age of 10. After returning to New Zealand for a short time the family migrated to Australia, first settling in Newcastle, New South Wales and eventually moving to Melbourne. Mr Vaofusi has not returned to New Zealand since arriving in 2003.

6. Mr Vaofusi suffered bullying while at school in New Zealand but settled well into school in Australia where he felt accepted and made many friends. He attended school in Australia from year 7 until partway through year 10 when he left school to gain full time work to assist with the family’s finances. Mr Vaofusi was active in his church community, playing bass in the churches’ band and was actively involved in sporting activities.

7. Mr Vaofusi has a substantial work history. He obtained part-time work picking apples and then at KFC whilst still at school. He found full-time work in a meat factory for about 1 to 2 years until the family moved to Werribee where he secured a job at Export Pallets making pallets for 2 to 3 years and then at Border Express as a forklift driver for 2 to 3 years until the breakdown of his marriage.

8. At the very young age of 17, Mr Vaofusi married Priscilla Leato in December 2007. Ms Leato was pregnant at the time and their first daughter was born in June 2008. Their second daughter was born in March 2010 and the third daughter was born in February 2012. The girls are now aged 9, 7 and 5 respectively. During the course of the marriage, Mr Vaofusi worked two jobs to support his family. The family lived in a rental property in Werribee during this period.

9. Mr Vaofusi’s marriage broke down around 2012 and ended acrimoniously because of many difficulties, including differences arising from the couple’s family’s allegiances to different religious faiths. Mr Vaofusi’s family worshipped at the Assembly of God Church of Samoa where Mr Vaofusi’s father is the senior pastor. Ms Leato’s family worshipped at the Church of Jesus Christ of Latter-day Saints. The Samoan community is highly religious and church activities and worship play a prominent part in the community. Mr Vaofusi and Ms Leato were married in the Church of Jesus Christ of Latter-day Saints and Mr Vaofusi’s father advised him to attend that church with his new family.

10. Mr Vaofusi described himself as a recreational cannabis user and a social drinker since the age of 18, consuming a slab of beer over a weekend with friends. However after the separation from his wife, he described himself as being ‘lost’ and his drug and alcohol consumption increased dramatically, including using ice (methamphetamine). Mr Vaofusi was consuming alcohol and ice daily from the end of 2012 until his incarceration in 2014. It was during this period that Mr Vaofusi committed several offences for which he was subsequently charged, convicted and sentenced to terms of imprisonment.

11. Since Mr Vaofusi has been in detention he has rekindled a friendship with Ms Jannai Sinfield-Smith, a single mother with a five-year-old son from a previous relationship. This friendship has developed into a serious romantic relationship, with Mr Vaofusi now hoping to marry Ms Sinfield-Smith and spend his life with her and her son. Mr Vaofusi considers Ms Sinfield-Smith’s son to be like his own child.

    ISSUES

12. In Mr Vaofusi’s of Statement of Facts, Issues and Contentions filed on 30 June 2017, it was conceded that Mr Vaofusi does not pass the character test. This concession was confirmed by Mr Vaofusi’s counsel at hearing. Noting this concession and the fact that Mr Vaofusi has a substantial criminal record by virtue of the 12 month sentence he received on 18 September 2014, I am satisfied Mr Vaofusi does not pass the character test.

13. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of Mr Vaofusi’s visa should be revoked, taking into account the relevant considerations in Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction). In essence the Tribunal must be satisfied there is another reason why the original decision should be revoked.

    LEGAL FRAMEWORK

14. With regard to the mandatory cancellation of visas, s 501 of the Act relevantly states that:

    (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.

    …

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)…

    ...

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more

15. With regard to the revocation of mandatory cancellations under s 501(3A), s 501CA relevantly provides:

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

    (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

    (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;

    (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.

    (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.

    (5)If the Minister revokes the original decision, the original decision is taken not to have been made.

    …

16. As mentioned above, Mr Vaofusi has conceded that he does not pass the character test, which leaves the Tribunal to determine whether there is another reason to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. It has been determined by North ACJ in Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 337 at 345 that:

    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. ...

17. Guidance in determining whether it is appropriate to revoke a mandatory cancellation can be found in the Direction. Section 499(2A) of the Act mandates that the Tribunal must comply with the Minister’s Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).

18. Paragraph 6.1 of the Direction states the objectives of the Act and the Direction, stating, in part:

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

    …

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

    (4)The purpose of this Direction is to guide decision-makers performing functions of exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

19. Paragraph 6.2 sets out General Guidance relating to the Government’s intent:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in… making a revocation decision are identified in Part C of this Direction.

20. The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts C of the Direction. Those principles are as follows:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

21. Paragraph 7.1(b) of the Direction states that a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a visa should be revoked.

22. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:

    …Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

23. Paragraph 13(2) outlines the primary considerations under Part C of the Direction::

    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.

24. Other considerations that must be taken into account, where relevant, are outlined in paragraph 14(1) of the Direction. Those 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.

25. Paragraphs 13.1-13.3 and 14.1-14.5 further elaborate on the primary and other considerations respectively and the relevant portions of those paragraphs are outlined under the CONSIDERATION heading of these reasons for decision. Finally, paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) also states that one or more primary considerations may outweigh other primary considerations.

    EVIDENCE

    Mr Vaofusi’s criminal offending

1. The following table has been derived from National Police Certificates dated 12 February 2015 and 19 July 2016, the sentencing remarks of her Honour Judge Campton on 26 February 2016 and information provided at the hearing by Mr Vaofusi’s solicitor.

COURT	COURT DATE	OFFENCE	COURT RESULT
Sunshine Magistrates Court	8 Nov 2013	Theft – from shop	Without conviction. Adjournment to be of good behaviour until 7 Nov 2014.
Broadmeadows Magistrates Court	18 Sep 2014	Theft Affray (common law) Intentionally Cause Injury Recklessly Cause Injury Burglary Theft Robbery (2 Charges) Driving offences	Aggregate 12 months imprisonment. Concurrent sentence is partially suspended under section 27 of the Sentencing Act 1991. Term to be served is 6 months, operational period of suspended 6 months is 12 months. $1,000 fine for driving offences.
County Court Melbourne	26 Feb 2016	Assault with intent to rob Robbery Robbery	12 months imprisonment. 8 month imprisonment, 6 months concurrent. Driver’s licence cancelled and disqualified from driving for 6 months. 6 months imprisonment concurrent. Total sentence of 1 year and 2 months with driver’s licence cancelled and disqualified from driving for 6 months.
Sunshine Magistrates Court	21 July 2017	Burglary and theft Fail to answer bail (x2) Possess controlled weapon without excuse Hinder police	Without conviction. Adjournment to be of good behaviour until 21 March 2018.

1. Mr Vaofusi’s offending commenced in late 2012, after the acrimonious separation from his wife and ended on 20 December 2013 when he was arrested and remanded in custody on charges for which he was subsequently acquitted.

2. Whilst on remand and subsequently whilst in detention, Mr Vaofusi’s various criminal offences over this 12 month period have been dealt with in both the Magistrates’ and County Courts at which time Mr Vaofusi pleaded guilty in respect of all the charges outlined above.

3. On 9 September 2012 Mr Vaofusi attended a nightclub in the Melbourne CBD with friends. During the evening he was involved in an altercation outside the venue for which he was subsequently charged with affray, intentionally causing injury and recklessly causing injury. At the hearing under examination Mr Vaofusi described the incident:

   Okay what happened? – – – What happened at the nightclub? I just had a few drinks with the boys inside the club. Thought I might come outside and have a smoke. Came outside and have a smoke. I turned to my right and there was a guy that was harassing a girl. I didn’t like that, so I went up to him and I say, “Leave her alone. She is a girl,” and he started being aggressive to me, so I didn’t like it either because I was influenced with alcohol, so I was aggressive back to him, things just happened there.

   All right. Well, when you say things just happened can you explain a little bit more, as best you can, what things happened then John? – – – I started throwing my fist. I started throwing what I can, and when he dropped I continued doing what I was doing. I was kicking him and I didn’t stop until they stopped me and I realised what I was doing was wrong.

   …

   And was there somebody else that you got involved in fighting with in the course of this? One of his mates or something of that nature? – – – Yes. There was two of them, so I was going to defend myself.

   Okay. All right. Sorry? – – – I was going to defend myself, because there was two of them.

   All right. And so you’ve said that one fellow you hit and when he went to the ground you kicked him; is that so? – – – Yes, I did.

   Now, at the time you were affected by alcohol? – – – Yes, I was.

   And how – how affected by alcohol were you? A little bit or – – – ? – – – It wasn’t a little bit. It was – it was a lot. It was a lot. Drank a lot that night.

   And you said that your – one of your mates stopped you; is that so? – – – Yes.

   …

   All right. Do you know what injury or injuries either of the men suffered? – – – No, I don’t.

   Under cross-examination Mr Vaofusi again recounted the incident 9 September 2012:

   You kicked him in the head? – – – Yes

   What were you thinking while you were doing this? – – – I wasn’t thinking.

   …

   … So you knocked him down and then you’ve kicked him in the head a number of times, but you can’t remember how many? – – – Yes, that’s correct.

   …

   … Did it occur to you that kicking this man in the head you could have killed him? – – – No.

   …

   How do you feel about your conduct on that evening? – – – I feel ashamed and I wish I could take things back, and sort it out another way.

4. On 21 September 2012 Mr Vaofusi attended a nightclub in Narre Warren where a brawl involving 20 people took place. During the incident police found a knife in Mr Vaofusi’s possession and he was restrained by the police as he was hindering their apprehension of another individual. Mr Vaofusi was arrested and charged with possessing a controlled weapon and hindering police. At the hearing under cross-examination Mr Vaofusi described the incident:

   … Can you tell the tribunal about the brawl and how you are involved? – – – Well, I was there in the brawl. I wasn’t really involved in the brawl. The thing was I was caught with a knife and when I – I don’t know what the knife is called but it was a knife.

   …

   So what were you doing outside a nightclub in Narre Warren, with a big kitchen knife? – – – I can’t remember. Because – I can’t remember where the kitchen knife came from. Because I didn’t – at that night, I didn’t have the kitchen knife. I wasn’t the one that brought it there so I can’t – I don’t remember where it came from. But I had it that night.

   Okay and you – when you saw the police arrive, you took it into a car and tried to hide it under the driver’s seat. Is that what you say? – – – Yes.

   But, the police found it, didn’t they? – – – Yes, they did.

   And what happened then? – – – That was it. They didn’t say anything else. They just spoke to me and what did I have it. But, I can’t remember most of what happened that night, but. Bits and pieces.

   …

   … [Y]ou saw this person you described as your brother [a friend and not a biological brother] being restrained by police on the ground. Is that right? – – – Yes, I did.

   And what did you do? – – – When he got restrained by police, I ran forward. I wasn’t going to do anything stupid. I just ran forward to tell him to relax. But they turned around and sprayed me with the pepper spray and then I was on the ground.

   …

   How did you explain that attempt to interfere with what the police were doing? – – – I wasn’t trying to interfere. I was just – the way they were handling my friend I was just telling them, just relax you know. His already down. He is not refusing…

5. On 1 October 2013 Mr Vaofusi committed a series of driving offences, including driving whilst his license was suspended, careless driving and driving an unregistered vehicle. At the hearing under examination, Mr Vaofusi noted that he had pleaded guilty but said that he could not remember the incident.

6. On 7 November 2013 at Wyndham Vale in the early hours of the morning Mr Vaofusi was involved in an altercation with two teenagers who were riding a bike and pushing a scooter. Mr Vaofusi chased the two boys in a car and subsequently took a number of their possessions including headphones, a backpack and a scooter. Mr Vaofusi was subsequently charged with two counts of robbery. At the hearing under examination Mr Vaofusi described the incident:

   … Did a couple of young men – young teenagers come by, one on a scooter one a bicycle? – – – Yes. There were a few kids. I was at the front of the house just having a cigarette. Kids were just coming past and throwing things at the house, so I thought I might just go and scare them, so I jumped in the car and chased them.

   …

   … So what was your intention when you jumped into the car with your friend and decided to chase these two youngsters? – – – Just to scare them.

   … And why did you want to do that? – – – Teach them a lesson.

   … Well, what had they done that needed a lesson to be taught as far as you were concerned? – – – Teach them a lesson to not do what they were doing before.

   You mentioned something about throwing something at the house – – – Yes, they were throwing stones.

   All right. Do you know why they were throwing stones? Was is just out of the blue or did  – – – ? – – – It was just out of the blue. Yes, it was just out of the blue.

   … So you and your – your friend in the car followed these two young fellows? – – – Yes.

   And what happened? – – – I took whatever they had on them.

   And why did you do that? – – – I just did it just to scare them.

   Did you succeed in scaring them, do you think? – – – Yes, I did.

   Did you physically harm them in any way? – – – No, I didn’t. I didn’t harm them.

   Under cross-examination Mr Vaofusi again recounted the incident of 7 November 2013:

   Was that when you first saw them? One was riding a bike and the other one was pushing a scooter? – – – The first time I saw them was when I was looking where the stones were coming from. So that’s when I first saw them.

   …

   Yes and then what happened? – – – Then I said a few words to them and – – –

   So, what were those words? – – – “You fucking little shit. I’m going to come and get you”. Then, I waited and my mate came out of nowhere and we jumped in the car and chased them.

   …

   … So, you drove after these two little kids and you caught up with them and then what happened? – – – I scare them.

   How would you do that? – – – Just saying a few words to them and telling them, “Give me your shit. I am going to take it”. So I took it and left.

   Yes and the stuff that you took was what you described to Mr Hughan earlier on? – – – the stuff that I took is the stuff that has been said and – – –

   A backpack, scooter, ear phones? – – – Yes.

   Yes. One of them was – began crying, didn’t he? Is that right? – – – I’m not sure. I can’t remember that.

   No and do you remember saying to one of them, “If you don’t stop then, we will put one in you?”? – – – No.

   But, you did – you do remember saying, “Shut up and give us your stuff”? – – – Yes.

   …

   … One of these young lads, says that he and his mate were cutting through the primary school and two men we had never seen before, called out to them to come across and then started walking towards them and this kid thought he was going to get jumped. So that both took off and you say, that is not what happened? – – – No.

   …

   … what do you feel about what you did that evening? – – – Well what I felt like during that evening – what did I felt. Right now, I thought I could have just done it a better way. Just to let them go. They are only little kids. Kids are always a smart arse. They do stupid shit like that. So, just let it go. They are only little kids. But, on that day when it happened, I thought I might just go down and give them a scare and don’t do it again.

   …

   Do you feel ashamed of bullying little kids? – – – Yes, I do. I do.

   …

   Okay and do regret that now? – – – Yes. I do regret that.

7. On 8 November 2013 Mr Vaofusi pleaded guilty to one charge of theft from a shop in the Sunshine Magistrate’s Court. He was placed on a good behaviour bond without conviction. At the hearing Mr Vaofusi stated that he had no recollection of being caught stealing from a shop, or being issued with a good behaviour bond.

8. On 14 November 2013 Mr Vaofusi broke into a house in Tarneit by forcing open an aluminium sliding window, leaving behind a fingerprint and stealing a modem and PlayStation console. He later pleaded guilty to charges of burglary and theft (one count each) in relation to this. At the hearing under examination Mr Vaofusi described the incident:

   … It’s said in… the police documentation that you broke in via an aluminium window and stole a modem and a PlayStation, leaving behind a fingerprint. Now what can you tell us, if anything, about that? – – – I plead guilty to it but I don’t remember what happened.

   … Well, how were you in November 2013… what were you doing on each day in December 2013? How was your life at that stage? – – – My life at that stage was just everywhere.

   In what way? – – – Just doing stupid things.

   Were you drinking? – – – Yes, I was always drinking, always drinking.

   And what about drugs? – – – Yes, every day.

9. On 18 November 2013 Mr Vaofusi was at a friend’s house in Hoppers Crossing where he and another friend physically assaulted and intimidated a Mr Borecki in an attempt to take his car keys. Mr Borecki later that day attended hospital for medical treatment and a statement of examination by Dr J Pascoe, Director Emergency Services, stated [t]he findings were consistent with: blunt trauma. Mr Vaofusi did not succeed in stealing the keys and was subsequently convicted of assault with intent to rob. Judge Campton, in her sentencing remarks, set out the circumstances in which she found the offence to have occurred:

   When you were in the garage with Bereki and Ozdemir, you became aggressive towards Bereki. You demand that he give you the keys to his car and grabbed him by the shirt. You were holding a crowbar and Ozdemir was holding a rubber mallet. Bereki had a heart condition and he had a panic attack and started shaking. You grabbed him around the throat and threatened him with the crowbar. You demanded that he hand over his car keys, but he refused to do so a number of times. He was then hit to his head and to the left side of his body. He fell to the ground, but managed to get out of the garage.

10. To avoid any uncertainty, it should be noted that the affidavit of Mr Borecki dated 20 February 2014 outlines that Mr Vaofusi hit him on the left side of the body with the crowbar, whilst Mr Ozdemir hit him in the head with the mallet. At the hearing under examination Mr Vaofusi provided further detail on the incident:

    Were you drinking? – – – No.

    What about smoking or using drugs? – – – Yes.

    All right. And who was Mr Bereki? Was he somebody that was known to you? Was he a – – – ? – – – He wasn’t known to me. I don’t know him. I met him a few times at that place but that was about it.

    …

    What happened? How did this disagreement with Mr Bereki arise? – – – Things just happened. They were just having a laugh at me, having a go at me. I reacted on it and – – –

    Well, it’s said that you hit Mr Bereki on the left side of his body with a crow bar. Did you do that? – – – Yes.

    And why did you do that? – – – I did it with – out of anger.

    And you asked – you grabbed him by the through and asked – or told him to give him – to give you your car keys – his car keys and his car. What was that about? Why were you asking for his car? – – – I just asked him for the car keys of his car because that’s all he had.

    But why did you want his car? – – – I just wanted his car just to take for a ride.

    …

    … apart from hitting Mr Bereki with a crowbar, did you also push him into a wall and punch him in the jaw? – – – Yes.

11. At the hearing under cross-examination Mr Vaofusi described the incident:

    So, you can’t remember hitting him with the crowbar? – – – No. It’s – the person that I did it too was Nick King. --- I don’t remember anything with Bereki.

    …

    So Mr Bereki managed to crawl into his car and on the way in, did you hit him? – – – Like I said with Mr Bereki, I don’t remember that – anything with Mr Bereki. That’s what I’m trying to say. Because, now looking at what is written here – it’s not what – I don’t remember anything.

12. Following the incident with Mr Borecki, Mr Vaofusi, at the same house as above, threatened a Mr King, took his car keys and stole his car (a Commodore valued at $30,000). Mr Vaofusi was later convicted of robbery. Judge Campton, in her sentencing remarks, set out the circumstances in which she found the offence to have occurred:

    … King went outside and he locked the door of the unit as you are scared about what might happen. Martinez came to the front door and asked to come back inside to get his backpack and then leave. As King could only see Matinez outside, he let him in. When King opened the door, you barged in, you told him to be quiet, you had a crowbar with you and you threatened to hit him if he did not settle down.

    Martinez then held King by his arms and you took his keys from his pockets. You left the unit in King’s car, which was returned outside his house the next day.

13. At the hearing under cross-examination Mr Vaofusi described the incident:

    ? – – – no. That’s not what happened. Because me taking the cars off Nick King. I was already inside with him. I didn’t have to break into anything to get to him. I already in there with him.

    …

    … Is it the case that another person held Mr King by his arms, while you took the car keys from Mr King? – – – I remember taking the car keys off Nick. That’s all I remember. Taking the car keys off Nick.

    All right. So you have stolen Mr King’s car. Why did you do that? Why did you steal his car? – – – I just took his car – just go for a ride.

14. Later that day Mr Vaofusi attempted to purchase petrol at a 7-Eleven store with a fake $50 note, which the cashier queried. Mr Vaofusi subsequently drove away without paying for the petrol, for which he was later convicted of theft.

15. On 20 December 2013 Mr Vaofusi again stole Mr King’s car, for which he was convicted of robbery. Judge Campton, in her sentencing remarks, set out the circumstances in which she found the offence to have occurred:

    … King and his friend, James Kittery, went to a service station in Morris Road, Hoppers Crossing to meet Shannon Sutton. You appeared at King’s car about ten minutes after Sutton arrived. You were wearing a hoodie with the hood over your head and you had a towel over your hand. You managed to get into the car when Sutton left and you said to King, “Why did you lag on me?” And you punched him to the jaw. You told him to get out of the car or you would stab him. King and Kittery got out of the car, they were frightened and when you told King to give you the car keys, he threw them at you. You then drove off.

    You were arrested at 7 pm the same day at the Werribee Plaza and King’s car was found later in January at the McDonald’s carpark. In your interviews with the police, you denied committing these offences.

16. At the hearing under examination, Mr Vaofusi explained that he took Mr King’s car again because Mr King had spoken to the police about him. Under cross-examination, this matter was further clarified:

    Okay and you demanded from Mr King to tell you why he had “lagged” on you. So, how would you know that he had lagged on you? – – – I had a warrant for my arrest and – – –

    So, you had been served with a warrant by then? – – – Yes.

    What did you do then? – – – I threatened him with a knife. But, there was nothing.

    …

    Did you actually have a knife with you? – – – No.

    But, you pretended that you did? – – – Yes.

    Mr Vaofusi’s conduct in prison and detention

17. Whilst in prison, Mr Vaofusi committed numerous disciplinary offences for which he was punished. The following has been sourced from documents produced on summons from Corrections Victoria, the Sentence/Remand Report Comprehensive Prison History. Where relevant, Mr Vaofusi’s evidence on the incidents has also been outlined.

DATE	INCIDENT	PUNISHMENT
9 Feb 2014	Half a tablet and balloon of white powder found in Mr Vaofusi’s cell.	$20 fine, loss of contact visits, increase in identified drug user program
11 April 2014	Standoff involving 25 prisoners (including Mr Vaofusi) over four hours with unit staff and area supervisor. The prisoners refused to return to their cells in support of another prisoner who was being relocated. Pepper spray was used to defuse the situation. Mr Vaofusi informed the Tribunal that the prisoners did not want to go into lockdown, as it was earlier than the usual time that they would Mr Vaofusi stated that there were verbal exchanges with the guards, such as calling them dogs, swearing at them and telling them we run the prison. He also stated that, after pepper spray was deployed, they threw objects at the guards, such as fruit, pans and microwaves. Mr Vaofusi could not recall any injuries being caused to the guards. No injuries to guards are mentioned in the prison history, nor were any criminal charges laid.	$250 fine for 5 charges (each $50)
28 April 2014	Mr Vaofusi and another prisoner told a prisoner officer would punch on with the prison officer when their cell doors were opened. Mr Vaofusi informed the Tribunal that the officer was trying to take him to a Governor’s hearing in relation to the 11 April 2014 incident and that he did not want to go. He denied threatening the officer with a punch on.	Loss of privileges
29 Sep 2014	Mr Vaofusi repeatedly smashed on his cell door prior to it being opened. Mr Vaofusi yelled abuse and made threats towards a prison officer. Mr Vaofusi informed the Tribunal that he was smashing on his cell because the officers were taking too long to open up the cells. He denied threatening the officer.	None
1 Nov 2014	Mr Vaofusi placed another prisoner in a head lock and guided him into a cell. The other prisoner was later found with swollen face and lacerations. Mr Vaofusi stated that the other prisoner wasn’t agreeing with him in relation to pouches and giving out smokes and that.	Moved to Chartwell
2 Nov 2014	Mr Vaofusi resisted being moved from Attwood Holding cell to Chartwell Management unit, claiming that the prison had no proof in respect of incident on 1 Nov 2014.	None
28 Feb 2015	Mr Vaofusi was involved in fight with another prisoner. Mr Vaofusi was later identified on CCTV as the instigator, throwing the first punch. Mr Vaofusi informed the Tribunal that he punched the other prison in the face because he lied to him. When asked what the other prisoner lied about, Mr Vaofusi said that the other prisoner promised smokes or drinks and stuff like that.	Reprimand
18 April 2015	Mr Vaofusi refused a request from staff to move on from an area and then refused a request to hand over his ID card, verbally abusing the prison officer.	$10 fine
3 May 2015	A number of prisoners, including Mr Vaofusi, were punching a prisoner who was on the ground. Mr Vaofusi failed to follow instructions from prison officers to step back and continued to punch the prisoner. Prison officers attempted to remove Mr Vaofusi from the prisoner. Mr Vaofusi resisted this attempt and continued punching the prisoner. Prison officers eventually broke up the fight and placed themselves between the prisoner and the aggressors. Mr Vaofusi then made physical contact with a prison officer a number of times and incited other prisoners not to return to their cells. Mr Vaofusi informed the Tribunal that he did not punch the prisoner and that he was only watching the fight. He said that he made no contact with a prison officer but that he did speak aggressively towards one, as there were six officers restraining one of the prisoners (which Mr Vaofusi believed was excessive).	None
9 July 2015	Mr Vaofusi shouted abuse a number of times during the evening at prison officers who had requested that they lower the amount of noise being made.	Loss of TV for 14 days
20 March 2016	Mr Vaofusi dropped a carton containing urine and faeces in front of cell, smashing it under his foot so that the contents spilled under the prisoner’s door. Mr Vaofusi informed the Tribunal that he did this because the other prisoner was a paedophile.	Reprimanded

1. At the hearing under examination Mr Vaofusi described his time in prison in the following manner:

   … How were you when you first went to jail? – – – When I first went to jail I was scared. I didn’t know what I was getting myself into. I didn’t know what jail was like.

   … [d]id you speak to people to say how you should act in jail? – – – Yes I did. I spoke to a few jailbirds that had been in jail for a long time, and they kind of told me the ropes of how you are in jail.

   What did they tell you? – – – Make sure you stand on your own two feet and keep your head up.

   What did you do? – – – That’s what I did. Just keep my head up, and I never let my guard down.

2. At the hearing under cross-examination Mr Vaofusi described his time in prison in the following manner:

   Looking back on your time in gaol, John, you were there for two and half years, nearly two and half years, what would you change? – – – In gaol I came out still doing the same thing, even on my last day I was still doing the same thing but I’ve learned a lot from jail as well, the things that can – just people, knowing people that – just knowing people by looking at them and to stay away from them. So just learned a lot of those and me, now, looking back and that, I just don’t like what I’ve done before and what I’ve done in gaol. I could have done better by doing courses and staying out of trouble and trying to make myself go as a B rating, so open camp, but no.

   Why was that, John, why did you choose that other path? – – – I just chose the other path because maybe I wanted to be a tough guy. Maybe I wanted to be someone that I wasn’t.

   What was attractive about that to you? – – – Attention.

   Attention from the other prisoners? – – – Yes.

   So you thought you’d be respected if you played the tough guy? – – – Yes I did.

   …

   So when you get upset you throw a hit? – – – Yes, I did, in gaol.

   What’s going to happen when you get upset in the community and you throw a hit? – – – That’s not what’s going to happen when I get upset. I’ve learnt to calm myself down, I’ve learned to – there’s things I’m interested in that will calm myself down, listen to music or just going kick back on my own spot with a guitar and just sing a song and stuff like that.

3. There are two reports of Mr Vaofusi being verbally abusive whilst on Christmas Island; neither incident resulted in any disciplinary action. Whilst on Christmas Island, Mr  Vaofusi’s behaviour has greatly improved. He has been placed in the Gold 2 accommodation area for trusted detainees. He is permitted to leave the centre to work in the community and attend excursions such as swimming and playing golf. A certificate of appreciation was presented to Mr Vaofusi on 7 April 2017 from Australian Border Force for demonstrating on-going positive behaviours in immigration detention and his contribution to the good order of the Christmas Island Immigration Detention Centre.

   Oral Evidence

4. As outlined above, Mr Vaofusi gave evidence to the Tribunal at the hearing of this matter. Additionally, Mr Solomona Vaofusi (Mr Vaofusi’s father), Ms Jannai Annemarie Sinfield-Smith (Mr Vaofusi’s partner) and Ms Lily Robertson (Mr Vaofusi’s aunt) all gave evidence at the hearing in support of Mr Vaofusi. Finally, Ms Carla Lechner, clinical psychologist, also provided evidence and was taken through a report she produced following an assessment of Mr Vaofusi.

   CONSIDERATION

   Protection of the Australian community

5. Paragraph 13.1 of the Direction elaborates on the concept of the protection of the Australian community. It provides that:

   (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

   (2)Decision-makers should also give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

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

   Nature and seriousness of the conduct

6. Paragraph 13.1.1 of the Direction relevantly provides:

   (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

   a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)The sentence imposed by the courts for a crime or crimes;

   d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   e)The cumulative effect of repeated offending;

   …

7. Counsel for Mr Vaofusi conceded that his offending is serious as he has committed several offences of violence, including affray, causing injury intentionally, causing injury recklessly, robbery, and assault with intent to rob. Furthermore, he has committed offences against vulnerable people, such as the teenagers who he robbed and Mr Borecki (who had a heart condition). However, it was submitted that his offences and behaviour leading to them were committed over a short period of time (September 2012 and then October 2013 to December 2013), did not involve the infliction of serious injury, and were not as serious as other matters presented before this Tribunal in ss 501/501CA character matters. Noting that the courts had not imposed lengthy prison sentences for the various convictions (having regard to the maximum sentences available for each crime), Mr Vaofusi’s statement of facts, issues and contentions described the sentences as quite modest. Counsel for Mr Vaofusi submitted that the Tribunal should consider Mr Vaofusi’s strong work ethic and exemplary behaviour supporting his family prior to his convictions, as well as the context in which his offending behaviour occurred, namely the breakdown of his marriage and subsequent drug and alcohol abuse.

8. Ms Carla Lechner, clinical psychologist, appeared as an expert witness for Mr Vaofusi. She described Mr Vaofusi’s history of offending as occurring during the darkest time in his life; which stood in stark contrast to a previously steady work history and stable family life. At the time of his offending he was in a depressed mood, abusing drugs and alcohol, with both factors adversely affecting his judgement, decision making and capacity for impulse inhibition. It should be noted the Tribunal did not place great weight on Ms Lechner’s written evidence. Her letter of instruction from Mr Vaofusi’s solicitors, brought to the Tribunal’s attention during the hearing, did not outline the details or questions she was asked to address in her report. The letter merely requests that Ms Lechner examine and provide a report on Mr Vaofusi. It may well be that this is the extent of the instructions Ms Lechner received as the report itself makes no mention of any questions asked. More importantly, documentary evidence of Mr Vaofusi’s offending was only provided to Ms Lechner subsequent to her telephone interview with Mr Vaofusi. Whilst it appears from Ms Lechner’s evidence before the Tribunal that Mr Vaofusi was quite open with her about what he could remember of his offending, she nonetheless received a limited account of Mr Vaofusi’s offending.

9. None of this should be considered a criticism of Ms Lechner’s professionalism or capacity as a psychologist. The issues with her report have arisen out of the instructions she received and the information that was provided to her. The Tribunal also notes that Ms Lechner was instructed at a very late stage prior to the hearing. One final note should be made about the report. The final paragraph of the report’s conclusions states that I have read, and abide by guidelines of the Practice Note 2 for Expert Witnesses. No such practice note exists for this Tribunal and it would appear that this is a reference to a practice note of the Victorian Civil and Administrative Appeals Tribunal (VCAT). The Tribunal has a Guideline on Persons Giving Expert and Opinion Evidence, signed by the President on 30 June 2015. The duties and requirements under the VCAT practice direction and the Tribunal’s guideline are similar in a general sense. Both documents contain the standard duties that a witness has an overriding duty to provide impartial assistance to the Tribunal and should not act as an advocate for a party. As such, the Tribunal is not of the view that any issues arise as a result of Ms Lechner reading the VCAT practice direction and not this Tribunal’s guideline. The Tribunal does not give any less weight to the report as a result of this particular issue, but notes that parties should always ensure that their expert witnesses read the correct guidelines or practice directions.

10. The respondent’s representative described Mr Vaofusi’s criminal record as lamentable and argued that he had not given due respect to important Australian institutions such as courts, police or prison officers. Attention was drawn to Mr Vaofusi’s violent offences within the community, as well as his subsequent conduct within prison and immigration detention. It was argued that Mr Vaofusi had shown an escalation of violence which, left unchecked, could have resulted in greater harm to Australian citizens. It was also noted that the imposition of any sentence is a last resort for a court and that the Tribunal should take this into account when considering the seriousness of Mr Vaofusi’s conduct.

11. The Tribunal accepts that Mr Vaofusi was in a dark place during this period of criminal activity and his behaviour was affected by his heavy drug and alcohol use. However this does very little to mitigate the serious nature of Mr Vaofusi’s escalating violent behaviour whilst in the community, and more importantly, his disregard for the criminal justice system as evidenced by his poor behaviour whilst in the prison system.

    Risk to the Australian Community

12. Paragraph 13.1.2 of the Direction relevantly provides:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13. In her sentencing remarks Judge Campton observed the following about Mr Vaofusi’s prospects of rehabilitation:

    … I accept that you are now remorseful for your actions and that you do have prospects of rehabilitation. This is largely because of the fact because you have a good work history and strong family support.

14. Whilst Ms Lechner had not directly addressed the issue of recidivism in her report, her evidence at the hearing was that Mr Vaofusi’s prospect of reoffending was low. She reached this conclusion on the basis that he was honest about his previous offending and actions whilst in prison and noted that his account of his actions largely married up to the criminal records she accessed subsequent to her telephone interview with him. She observed that he had many protective factors that would mitigate against risk of reoffending, including that he: had no mental health issues; had good insight into his low moods which had resulted in self-medication of drugs and alcohol leading to his criminal activity; had no history of drug and alcohol abuse before his marriage breakdown; had a strong work history; has strong family support; and has a desire to better himself both as an individual and father.

15. In her report, Ms Lechner stated:

    From a psychological perspective however, if cannot be said in definitive terms that he is of “bad” character as this totally overlooks the totality of his life, the positive contribution the he made to our community through his work and support of his family and his efforts at rehabilitation. He presents with a favourable prognosis for his ongoing rehabilitation in light of the following factors: i) strong family support; ii) a capacity to seek and maintain employment; iii) insight regarding the nexus between his emotional dysregulation, substance abuse and offending; and iv) a strong desire to be positively involved in parenting his young daughters.

16. It should also be noted that, during his assessment with Ms Lechner, Mr Vaofusi was administered the Beck Depression Inventory (BDI). The BDI is a self-report questionnaire canvassing a range of psychological and physiological symptoms of depression. Ms Lechner stated that Mr Vaofusi’s score on the BDI fell into the extreme range and that this was consistent with his presentation at interview and a diagnosis of clinical depression.

17. Under examination, Mr Vaofusi was questioned about how he felt about his offending, his likelihood of reoffending and how he has changed. He stated:

    … I’m ashamed. I’m ashamed. Embarrassed. There’s no other word to describe how much. I’m just – remorse. I feel shit with what I’ve done, and there’s nothing to take it back.

    … That won’t happen [reoffending]. I’ve learned a lot at the detention centre. I’ve learnt how to control myself. I’ve learnt how to walk away from troubles. I’ve learnt to have – to try and calm down troubles, even though I’m not the one that’s having the trouble, but when there’s trouble around, I kind of put my nose in these, I say, “Relax boys. You know, just talk it out.” So I’m that peacemaker in the detention centre…

    … What’s changed is I want to do better. I want to do something good for myself. I want to prove to people that I am not that person that I was when I was in jail, and before jail. I want to show them that I can do much more, and I want to show the community what I can give out there.

18. Under cross-examination, Mr Vaofusi was asked about his good behaviour in detention and whether the prospect of deportation had any bearing on his behaviour. He stated:

    I don’t change because of deportation. I want to change because of me. I don’t like who I used to be. I never did. I want to show people that I’m someone more. I want to show people that hey, John’s a good guy. I just want to show people that I’m a better person.

19. Ms Sinfield-Smith, Mr Vaofusi’s current partner gave evidence at the hearing that she believes he is a changed man and his risks of reoffending are exceptionally low. Under cross-examination, she stated:

    … He can pull himself back from the situation, he can analyse it and calm himself down. He comes to me and we speak about it and, you know, he never gives up. He’s constantly on good behaviour. He was let out into the community and he’s in a privileged unit. When I speak to him on the phone he has all his friends coming up to him. He’s speaking to the guards, they get along. You know, he’s just grown as a person.

    … I mean if he’s let out in the community on Christmas Island, you know, he’s obviously not a threat like they’re making him out to be. He’s good.

20. Mrs Lilly Robinson, Mr Vaofusi’s aunt who is a qualified youth worker working in the area of juvenile justice, provided a written statement to the Tribunal and gave oral evidence at the hearing concerning Mr Vaofusi’s prospects of reoffending. She stated that she asked him the question [w]hen you go into the community do you think you’re going to reoffend? Are you likely? She informed the Tribunal that his response to this was:

    He said no, and crying. Crying. He’s learnt a lot. So I believe in my – my heart that he’s a changed person. He will not reoffend. He’s got the support of his family. He’s got my hundred per cent support.

21. Mr Solomona Vaofusi, father of John, provided a statement to the Tribunal and gave oral evidence in which he advised that John’s attitude had changed greatly since he had been on Christmas Island. In his written statement, Mr Solomona Vaofusi stated that, compared to how he behaved in gaol and earlier in the community, Mr Vaofusi:

    … has been very calm and accepts our advice about what he should do in the future. … [H]e realised that none of his friends liked him anymore. Since then John has come to realise that the only people who really loved him are members of his own family and John now very much values the support given to him by his family in particular his mother and Jannai, his girlfriend… I firmly believe that he has deeply considered and ‘lived through’ the consequences to him of serious offending. I now believe he will have the means of coping with the normal life. I believe that with the ongoing support his family can and will willingly provide, and that our church can provide, John will have the means, with his girlfriend Jannai, to re-establish a normal life for himself within our community.

22. The Tribunal was cognisant of the extensive family support available to Mr Vaofusi as it was displayed in earnest during the hearing, with many members of Mr Vaofusi’s family in attendance on both days. The difficulty for the Tribunal in respect of this claim is that family support was available to Mr Vaofusi prior to and during his criminal conduct. Mr Vaofusi did state that he had moved out of the family home and was no longer seeking his parent’s advice during the time of his offending, as he did not want people to know that he was not coping with the breakdown of his marriage. However, the support was there and did not stop him from committing a string of offences.

23. The respondent pointed to the relative paucity of programs Mr Vaofusi had undertaken in an attempt to improve his prospects of rehabilitation, his conduct in gaol with extended periods ‘in the slot’ in response to disciplinary action for various offences, and his lamentable criminal record demonstrating a real likelihood of recidivism if Mr Vaofusi is allowed out into the Australian community. The respondent chronicled much of Mr Vaofusi’s testimony to demonstrate that he has significant difficulty in controlling his temper, that he is someone who likes to get his own way, and that he often throws a punch when frustrated. Additionally, he cited Mr Vaofusi’s diagnosis of clinical depression and his tendency to self-medicate on alcohol and drugs as another significant concern and that this represented a potential risk profile.

24. The respondent submitted that Mr Vaofusi’s tendency to resort to violence when angry could lead to dire consequences if he reoffended in the future, as he is a large strong man who can cause serious injuries with his fists. It was argued this was best demonstrated by Mr Vaofusi’s actions of kicking a man while down and that this could have resulted in significantly greater injuries and even death. The respondent further argued that Mr Vaofusi’s likelihood of reverting to drug and alcohol use was high, despite his support from family and his partner and that this posed too great a risk for the community.

1. Counsel for Mr Vaofusi submitted that Australians would afford him a higher level of tolerance of his criminal and other serious conduct as he had arrived in Australia at a very young age and had spent the majority of his life here. It was submitted that whilst his crimes were serious, they were not at the high-end of offending and his likelihood of reoffending was low, as he had many protective factors including the support of his family, his partner Ms Sinfield-Smith, strong work prospects, and the desire to be a good father to his three daughters and Ms Sinfield-Smith’s son. Finally, it was noted that Mr Vaofusi had significantly improved his behaviour in detention.

2. In assessing the competing views relating to Mr Vaofusi’s risk of reoffending, the Tribunal acknowledges that a person who has committed offences always presents some risk that they will do so again. The Tribunal accepts Mr Vaofusi’s offences were committed during a period of great personal turmoil while he was influenced by drugs and alcohol abuse. The Tribunal was also impressed by Mr Vaofusi’s candour in respect of his offences and the fact that he did not seek to excuse his actions because of his alcohol and drug addiction at the time.

3. Whilst the Australian community expects that people will be given a chance to redeem themselves and that prison offers a chance for rehabilitation, they have a low tolerance for individuals who show little respect for our laws and values. The nature of harm that would be caused to the Australian community or other individuals should Mr Vaofusi repeat his conduct is serious. Much of Mr Vaofusi’s offending in the Australian community and incidents in prison could have resulted in serious injury. In the case of kicking someone in the head repeatedly, as Mr Vaofusi did on the 9 September 2012, Mr Vaofusi’s conduct could have had fatal consequences. Taking into account the available evidence concerning Mr Vaofusi’s risk of reoffending, the Tribunal is of the view that there is a real risk of Mr Vaofusi reoffending. The Tribunal acknowledges that Mr Vaofusi has improved his behaviour in immigration detention, but that this was preceded by a long period of criminal offending in the Australian community and serious conduct in prison. Although Mr Vaofusi seems to have recovered from the break-up of his marriage, the Tribunal remains concerned with his tendency to self-medicate on alcohol and drugs and to engage in violence when frustrated. Mr Vaofusi’s clinical diagnosis of depression is also of concern and heightens his risk of future offending.

4. Taking into account both the nature of the harm that Mr Vaofusi may cause and the likelihood of him re-engaging in criminal or serious conduct, the Tribunal is of the view that Mr Vaofusi represents an unacceptable risk of harm to the Australian community. The risk that Mr Vaofusi presents to the Australian community, coupled with the nature and seriousness of his offending outlined earlier in these reasons for decision, leads to a conclusion that the protection of the Australian community consideration weighs in favour of not revoking the mandatory cancellation of Mr Vaofusi’s visa.

   Best interests of minor children in Australia affected by the decision

5. Paragraph 13.2 of the Direction relevantly provides:

   (1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

   (2)This consideration applies only if the child, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made.

   (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

   (4)In considering the best interests of the child, the following factors must be considered where relevant:

   a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   e)Whether there are other persons who already fulfil a parental role in relation to the child;

   f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   …

6. The Tribunal accepts it is in the best interests of Mr Vaofusi’s children and his current partner’s child for the mandatory cancellation of his visa to be revoked. Whilst Mr Vaofusi has had limited contact with his three girls since his incarceration, this has not undermined or deterred his resolve to be a good father to his children. He told the Tribunal that, in gaol, he would get in contact with his daughters every month, sending cards, but that no cards would come back. He said that he would always try to contact them but that his ex-wife would not let him. He said his parents had similar issues contacting the children. He further stated that, if allowed back into the Australian community, he would make every endeavour to ensure he was again part of their life (even if he had to go to court). The Tribunal accepts there has been limited meaningful contact between Mr Vaofusi and his three girls but this has not been by choice on Mr Vaofusi’s part. The Tribunal accepts that should Mr Vaofusi be removed from the Australian community he would lose any hope of meaningful contact with his three daughters, regardless of the possibility of some contact by social media and phone. The Tribunal finds that the best interests of these children weigh strongly in favour of revoking the mandatory cancellation of Mr Vaofusi’s visa.

7. The Tribunal finds that Mr Vaofusi has formed a close bond with his partner’s child and would play a positive parenting role in the future. At hearing, Mr Vaofusi stated that:

   I look at him as my son. You know, we are close. We’re tight. You know, he loves me, I love him, you know. I don’t look at him as any other kid; I just look at him as my own kid… I want to take care of him, I want to teach him, you know, the right way, and I love him. I love him so much like how I love her [Ms Sinfield-Smith].

   Whilst the duration of Mr Vaofusi’s relationship with this child has been short, it is clear on the evidence before the Tribunal from both Mr Vaofusi and Ms Sinfield-Smith that the bond between the two is strong. However, in her evidence, Ms Sinfield-Smith stated that if Mr Vaofusi’s visa cancellation were not revoked and he had to return to New Zealand, she and her son would move to New Zealand with him. She stated that her son would miss his maternal grandmother but would otherwise be happy if she was happy in New Zealand. Noting that the non-revocation of the mandatory cancellation of Mr Vaofusi’s visa will not separate this child from his mother or from Mr Vaofusi, the best interests of this child only slightly support the revocation of the mandatory cancellation of Mr Vaofusi’s visa.

   Expectations of the Australian community

8. Paragraph 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.

9. The respondent contended the Australian community would expect the mandatory cancellation of Mr Vaofusi’s visa to not be revoked. It was submitted that the Australian community rightly expects non-citizens to obey the laws of Australia and respect their institutions. Mr Vaofusi’s propensity to resort to violence when he becomes angry, his poor behaviour whilst in prison and his real risk of re-offending are such that the community would rightly expect the Australian Government and this Tribunal to not revoke the mandatory cancellation of his visa.

10. Counsel for Mr Vaofusi observed that the expectations of the Australian community should be assessed from the perspective of a member of the community who held “middle of the road” views on migration matters and who was fully informed of the evidence before the Tribunal. Reliance was placed on the view of Block DP in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 (Re Jupp) at [7] in regard to the expectations of the Australian community:

    It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …

    Although it considered an earlier Ministerial Direction, there is little reason to think the reasoning in that case does not remain applicable to assessing this consideration under Ministerial Direction 65. The Tribunal also notes Forgie DP’s decision in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, where it was stated at [72] that determining the expectations of the Australian community is ultimately a matter for judgment, the facts of which that judgment is made must be made on the basis of facts established by the evidence. Finally, it should also be noted that the principles in paragraph 6.3 of the Direction are important to considering the expectations of the Australian community, as they reflect community values and standards (para 6.2(1) of the Direction).

11. There can be no question that Mr Vaofusi has betrayed the trust of the Australian community through his acts of senseless violence in both the Australian community and prison. Mr Vaofusi has not attempted to whitewash his criminal offending and whilst he acknowledges his crimes were committed whilst affected by drugs and alcohol, he has not used this as an excuse for his actions. He has, however, sought to demonstrate that his marriage breakdown propelled him into a ‘lost and dark place’ where he associated with people who were as lost as him and he did not seek the support or counsel of his family. Since being in immigration detention he has realised his family is the most important pillar in his life and his relationship with Ms Sinfield-Smith has given him strength to reform himself to be a better man. The Australian community on the whole wants to give people a second chance and would recognise that Mr Vaofusi has served his time in prison and has been punished for his crimes. However, the Australian community also has a low tolerance for people who repeatedly commit violent crimes and continue on that path whilst in gaol. Whilst Mr Vaofusi has been participating in and contributing to the Australian community since he was 13 years of age, there remains an unacceptable risk that he will breach the Australian community’s trust once more, with potentially serious consequences. The Tribunal finds that the Australian community, fully informed of the circumstances of Mr Vaofusi’s offending and his other circumstances, would expect the mandatory cancellation of his visa not be revoked. Accordingly, the Tribunal finds that the expectations of the Australian community weigh in favour of not revoking the mandatory cancellation of Mr Vaofusi’s visa.

    Strength, nature and duration of ties to Australia

12. Paragraph 14.2 of the Direction 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).

13. The Tribunal accepts that Mr Vaofusi has strong and enduring ties to Australia, having arrived here as a 13-year-old and having lived most of his adult life in Australia. Mr Vaofusi advised the Tribunal he considered himself an Australian and that he had felt more at home here than in New Zealand, where he had been bullied as a child, had no family or friends, and did not feel part of the community. Mr Vaofusi’s large and extended family all reside in Australia and they would suffer the same separation he would if he was returned to New Zealand. Mr Vaofusi’s father advised the Tribunal that he and his wife would find it extremely difficult to travel to New Zealand to visit their son because of his obligations to their church, in his role as senior pastor. Whilst he conceded that he had the financial capacity to visit Mr Vaofusi in New Zealand, it is clear that, on a practical level, it is extremely difficult if not impossible for Mr Vaofusi’s father and mother to visit their son in New Zealand.

14. Mr Vaofusi has contributed to the Australian community through his continuing employment from the age of 15 until a short time before his incarceration and would likely, given his skills and drive, find work if he returned to the Australian community. Mr Vaofusi has fathered and raised three girls in the Australian community; working two jobs to ensure they were provided for and would most likely lose meaningful ties with his children should he be returned to New Zealand. His relationship to Ms Sinfield-Smith and her son would also be put under strain, though she has expressed a willingness to travel to New Zealand with Mr Vaofusi should his Visa be cancelled.

15. The Tribunal accepts that Mr Vaofusi has significant emotional ties to his family, partner and children and it would place considerable emotional and physical difficulty on him if the mandatory cancellation of his visa was not revoked. The Tribunal finds that the strength, nature and duration of Mr Vaofusi’s ties to Australia weigh strongly in favour of revoking the mandatory cancellation of his visa.

    Extent of impediments if removed

16. Paragraph 14.5 of the Direction provides that the Tribunal should give consideration to:

    (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)The non-citizen’s age and health;

    b)Whether there are substantial language or cultural barriers; and

    c)Any social, medical and/or economic support available to them in that country.

17. The Tribunal accepts that Mr Vaofusi will face some impediments if he is returned to New Zealand, most particularly, the separation from his family, his children and the strain it will place on his fledgling relationship with Ms Sinfield-Smith. However, adapting to life in New Zealand should not pose any insurmountable challenges to Mr Vaofusi. There are no linguistic or cultural barriers for him and he is young, in good health, and able-bodied. The Tribunal acknowledges he would have to re-establish his life without the close support of his family and that in all likelihood he will have no meaningful contact with his daughters. The protective social factors available to him will be lost and he may be drawn back into criminal conduct. Indeed, his father Mr Solomona Vaofusi advised the Tribunal at the hearing that: I’m very worried if he’s going back to New Zealand, because he left New Zealand at his young age. He doesn’t know anyone there, and also – yes, no family there to look after him or support him.

18. There will be impediments to Mr Vaofusi if he is removed from Australia, including his loss of family connection, difficulties establishing himself in a new country, with the added difficulty of re-entering the community after a lengthy period in gaol and immigration detention. However, these impediments are not so great that he will not be able to overcome them in time. The support of his partner, who has indicated that she would move to New Zealand with Mr Vaofusi if he had to return to New Zealand, will be of assistance in forming a new life. The Tribunal also notes that there are a number of Samoan Assembly of God Churches in New Zealand and that it is likely the church would be able to assist Mr Vaofusi in adjusting to life in New Zealand. The Tribunal has found this consideration only weighs slightly in favour of revoking the mandatory cancellation of Mr Vaofusi’s visa.

    CONCLUSION

19. There are considerations that weigh in favour of revoking the mandatory cancellation of Mr Vaofusi’s visa. The foremost of these is the primary consideration of the best interests of minor children in Australia. It is in the best interests of Mr Vaofusi’s three biological children that he remains in Australia and this weighs strongly in favour of revoking the mandatory cancellation of his visa. The best interests of Ms Sinfield-Smith’s son also weigh slightly in favour of revoking the mandatory cancellation of his visa, though the Tribunal notes that if Mr Vaofusi were to return to New Zealand, Ms Sinfield-Smith and her son would likely move to New Zealand to be with him. Beyond this primary consideration, the strength, nature and duration of Mr Vaofusi’s ties to Australia also weigh strongly in favour of revoking the mandatory cancellation of his visa, with Mr Vaofusi exhibiting strong familial ties to Australia over a long period. The strength, nature and duration of Mr Vaofusi’s ties to Australia are also evident in his employment history and his relationship with Ms Sinfield-Smith. Finally, the Tribunal notes the impediments Mr Vaofusi may face upon return to New Zealand also weigh slightly in favour of revoking the mandatory cancellation of his visa.

20. Although there are considerations weighing in Mr Vaofusi’s favour, the Tribunal found that these considerations do not outweigh the two other primary considerations, being the protection of the Australian community and expectations of the Australian community, both of which weigh in favour of not revoking the mandatory cancellation of Mr Vaofusi’s visa. Mr Vaofusi’s offending was serious and there remains an unacceptable risk of Mr Vaofusi reoffending. If he were to offend further if he remained in the Australian community, the consequences for a victim could be serious and possibly fatal. Furthermore, it is the expectation of the Australian community that someone with an extensive, often violent, criminal record and poor behavioural record in prison, and who remains an unacceptable risk of repeating that conduct, would not be allowed to stay in Australia.

1. Overall, the Tribunal finds that having regard to all of the primary and other relevant considerations required by the decision maker to take into consideration under the Direction, the correct and preferable decision is to not revoke the mandatory cancellation of Mr Vaofusi’s Visa.

2. The Tribunal affirms the decision under review.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

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

Associate

Dated: 7 December 2017

Dates of hearing:	12 & 27 July 2017
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Esser Legal
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor