Wekerle and Minister for Home Affairs (Migration)

Wekerle and Minister for Home Affairs (Migration) [2019] AATA 630 (3 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0253
Re:Koli Wekerle
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 April 2019
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory cancellation of TY Subclass 444 Special Category (Temporary) Visa – substantial criminal record – repeated violent offending – request for revocation of visa cancellation – failure to pass character test – Ministerial Direction No. 79 applied – protection of Australian community – best interests of minor children – expectations of Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
CASES
Maxwell v R [1996] HCA 46; 184 CLR 501
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
DPP v Wekerle [2017] VCC 435
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum to the Migration Amendment Regulation 2012 (No. 5)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 April 2019
INTRODUCTION

The applicant, Mr Koli Wekerle, is a 22 year-old citizen of New Zealand. He seeks review of a decision by a delegate of the Minister for Home Affairs (“Minister”), made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”).
The hearing was held in Melbourne on 27 March 2019. Mr Wekerle was granted leave to appear via video link from Yongah Hill Immigration Detention Centre and was self-represented. The Minister was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mr Wekerle was born in Samoa and resided with his biological mother and then his grandmother after his mother remarried. In approximately 2010, when aged 13, he was adopted by his maternal aunt and her husband. He moved to Australia with his adoptive parents in 2012.
Mr Wekerle was 15 years old on arrival in Australia and has spent most of the last seven years here, except for a seven-month stay in Malaysia in 2013 and a three-week visit to Samoa in October 2014.[1] He submits that he attended two years of high school in Australia and also undertook some vocational education and training.
[1] Exhibit R1, 46.
In February 2015 Mr Wekerle committed two violent offences, for which he was sentenced in June 2015 to six months detention in a youth training centre.[2] While serving that sentence he committed further violent offences, and, after being released, was convicted of more violent offences in May 2016 and April 2017.
[2] Ibid, 35.
On 7 June 2017 Mr Wekerle’s visa was cancelled under section 501 (3A) of the Act,[3] at which time he was serving a full time sentence of imprisonment at the Hopkins Correctional Centre. Mr Wekerle made representations requesting that the visa cancellation decision be reversed.[4] After considering his representations, a delegate of the Minister decided on 9 January 2019 not to revoke the cancellation of his visa.[5] Mr Wekerle acknowledged receipt of the non-revocation decision on 10 January 2019.[6]
[3] Ibid, 47-55
[4] Ibid, 56-59; 60-101.
[5] Ibid, 12-13.
[6] Ibid, 155.
On 16 January 2019 Mr Wekerle applied to the Administrative Appeals Tribunal (AAT) for a review of the non-revocation decision. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 4 April 2019.
RELEVANT LEGISLATION AND POLICY
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if a delegate of the Minister decides not to revoke a visa cancellation decision under s 501(CA)(4) of the Act.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) to introduce ss 501(3A) and 501(6)(e), amongst other amendments. The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act (ss 4(1) and 4(4)). As the High Court held in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.
The character test is defined in ss 501(6) to 501(12) of the Act and refers to a range of matters that the Minister or their delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa. Section 501(6) of the Act provides that:
(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)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about the revocation of the original cancellation decision. Provisions relating to the form and process of those representations are regulated by reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) provides the Minister discretion to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. One such direction is Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). The Direction commenced on 28 February 2019 and replaced Ministerial Direction No. 65. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[7]
[7] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under section 501 of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(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.
(2) ….
(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 principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
It is mandatory that decision-makers take into account the primary and other considerations relevant to the specific circumstances of an applicant’s case. Paragraph 7(1)(b) of the Direction provides that in the present matter, which relates to the mandatory cancellation of a visa under s 501(3A) of the Act, a decision-maker ‘…must take into account the considerations in Part C…’ The following primary considerations at paragraph 13(2) of the Direction must therefore be taken into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
The Direction constitutes a framework within which the discretion vested in a decision-maker is to be lawfully exercised. Paragraph 8(2) of the Direction states that, in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop[8] at [57] and [78]:
[57]…the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
[78]…Ultimately, in the application of both Directions, each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
[8] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461; 124 ALD 68.
EVIDENCE BEFORE THE TRIBUNAL
The following material was taken into evidence:
(a)G-documents numbering 155 pages;[9]
(b)Supplementary G-documents numbering 663 pages;[10]
(c)An email from Mr Wekerle dated 14 March 2019, which he adopted as his statement and which was taken into evidence without objection;[11]
(d)An unsigned letter dated 4 March 2019 from Ms Raijieli Brook;[12]
(e)An email forwarded by Mr Wekerle to the Tribunal on 2 March 2019, purportedly from Ms Benita Daniel;[13]
(f)A letter from Mr Maleth Ouk of the Youth Support and Advocacy Service dated 14 February 2019;[14] and
(g)Material obtained under summons from Victoria Police relating to Mr Wekerle’s offences on 23 April 2016, for which he was sentenced on 26 May 2016.[15]
[9] Exhibit R1.
[10] Exhibit R2.
[11] Exhibit A1.
[12] Exhibit A2.
[13] Exhibit A3.
[14] Exhibit A4.
[15] Exhibit T1.
National Police Certificate and records obtained under summons
A National Police Certificate[16] discloses that Mr Wekerle has been convicted of the following offences:
(a)12 April 2017 – Melbourne County Court: ‘Affray’ and ‘Intentionally cause injury,’ for which he received an aggregate sentence of two years imprisonment, with a non-parole period of 15 months;
(b)26 May 2016 – Melbourne Magistrate’s Court: ‘Affray (common law),’ Recklessly cause injury (three charges), Commit indictable offence whilst on bail, Contravene a conduct condition of bail granted, Traffick cannabis, Possess cannabis, Deal with property suspected proceed of crime, and Contravene community correction order (CCO) (two counts);
(c)16 November 2015 – Dandenong Magistrates’ Court: ‘Assault in company’ and Unlawful assault (two counts); and
(a)11 June 2015 - Latrobe Valley Magistrates’ Court: Recklessly cause serious injury and Use prohibited weapon without exemption or approval. Mr Wekerle was aged 18 at the time of these initial convictions.
[16] Exhibit R1, 34-35.
Sentencing remarks and records obtained under summons
The Tribunal has before it the court’s ‘Reasons for Sentence’ relating to Mr Wekerle’s April 2017 convictions,[17] as well as police, court and other records obtained under summons.[18] In the sentencing remarks relating to Mr Wekerle’s 2017 convictions, His Honour referred to Closed Circuit Television footage showing Mr Wekerle, in company with two younger co-offenders, punching and kicking a victim. The victim was also hit with a stake by one of the co-offenders.[19] The victim was noted to have blood dripping down his face from head and facial wounds as he sat at the top of some stairs after the attack. Mr Wekerle returned to the bleeding victim and placed an arm around him, which a bystander erroneously thought may have been an act of assistance. Instead, Mr Wekerle stepped back and delivered a ‘full blooded kick’ to the victim’s face, causing the victim to fall backwards, strike his head on the concrete and be rendered unconscious. Mr Wekerle then stomped on the victim’s face.
[17] DPP v Wekerle [2017] VCC 435; Exhibit R1, 36-43.
[18] Exhibit R2; Exhibit T1.
[19] Exhibit R1, 38 [6]-[9]
When asked by police why he had returned to the victim after the initial attack, Mr Wekerle stated he was angry, wanted to teach the victim a lesson, and ‘couldn’t help [himself].’ His Honour noted these comments were ‘made in the absence of any drug influence and any mental illness,’ finding Mr Wekerle’s offending to be ‘senseless, sustained violence of a very serious kind.’
In relation to Mr Wekerle’s criminal record prior to his 2017 convictions, the court referred to ‘an alarming record of violence for a person still not 21 years old.’[20] His Honour noted that Mr Wekerle had been treated leniently by the courts, but had ignored those opportunities, including by breaching CCO’s – three of which had been in force at the time of his 2017 convictions. His Honour further noted that Mr Wekerle:
(a)had committed violent offences while serving a sentence in youth custody in 2015;[21]
(b)had committed offences of the sort that ‘seriously compromises our citizens’ right to feel safe in the streets…and which can have devastating physical and other consequences.’[22]
(c)did not have ‘much, if any, real insight’[23] into his violent behaviour, and his remorse was ‘tempered somewhat’ by that lack of insight;
(d)‘past attitude to non-custodial dispositions’[24] was such that a further CCO was not appropriate and a prison sentence was required to ‘manifest the community’s denunciation of [his] conduct’ and to ‘protect the community from any repetition of this type of offending,’[25] and
(e)had ‘guarded’ prospects of rehabilitation.[26]
[20] Ibid, 39 [13].
[21] Ibid, 40 [14].
[22] Ibid, 42 [22].
[23] Ibid, 41 [17].
[24] Ibid, 42 [19].
[25] Ibid, 42 [22].
[26] Ibid, 41 [17].
Medical evidence
A report by psychiatrist Dr Maria Triglia was considered by the Court prior to Mr Wekerle’s sentencing on 12 April 2017. The following observations from Dr Triglia were incorporated into a Chronology and Submissions presented to the Court by the defendant:[27]
(a)Mr Wekerle had a number of instabilities in his early life in Samoa involving the separation of his parents, the absence of his father, and adoption by a maternal aunt;
(b)Mr Wekerle did not have any psychiatric illness;
(c)Mr Wekerle ‘has longstanding problems regulating negative emotions particularly in relation to his self-esteem and issues of attachment and abandonment;’
(d)It was important that Mr Wekerle participate in an Offending Behaviour Program and Anger Management;
(e)Mr Wekerle displayed limited insight into his offending, but expressed preparedness to receive counselling and support.
[27] Exhibit R2, 19-20.
Mr Wekerle’s evidence

The Tribunal noted Mr Wekerle’s:
(a)revocation request dated 28 June 2017;[28]
(b)Personal Circumstances Form dated 28 June 2017;[29]
(c)Personal Circumstances Form dated 21 September 2018;[30]
(d)provision of letters and statements of support,[31] as well as various certificates of achievement / completion / participation, and statements of results;[32] and
(e)an email dated 14 March 2019, which he adopted as his statement and which was taken into evidence without objection.[33]
[28] Exhibit R1, 56-59.
[29] Ibid, 60-71.
[30] Ibid, 71-80.
[31] Ibid, 81-90.
[32] Ibid, 91-101.
[33] Exhibit A1.
At the commencement of his oral evidence, Mr Wekerle stated he would not be calling any witnesses during the hearing.
Mr Wekerle submitted that his early life in Samoa was harsh and characterised by strict discipline from his biological mother and other family members. He contextualised his offending as a product of that environment, where violence was commonplace; including in his own home. He said he ‘was only taught the school stuff, the Bible stuff,’ but hadn’t been taught about the law. He claimed that after arriving in Australia, he had not realised that fighting was a crime, including because his English was ‘no good.’ His adoptive parents had brought him to Australia for a better future and in the first few years he had been ‘very obedient’ until he ‘couldn’t take it any longer’ and made the ‘wrong friends.’
Mr Wekerle agreed that a family violence intervention order (FVIO) had been put in place, to protect his adoptive mother, in November 2013 and had remained in force until 2015.[34] He also agreed that he had contravened the FVIO[35] on a number of occasions, including by kicking his mother’s car and holding a knife in her presence, causing her to fear that he was going to harm her.
[34] Exhibit R2, 632.
[35] Ibid, 609.
When asked about a violent assault he had committed with an extendable metal baton in February 2015,[36] Mr Wekerle rejected aspects of a police report that recorded him saying he attended the home in question because he was ‘angry at the victim and wanted to kick his ass.’ He denied that he had told police the victim had intended to ‘fuck him up’ but instead Mr Wekerle had ‘fucked him up worst.’[37] He claimed in his oral evidence that his purpose in attending the home was to enable his then girlfriend to ‘collect some of her stuff.’ Mr Wekerle insisted he had not struck the victim in the head with the baton, claiming to have only struck him in the ribs. Mr Wekerle agreed, however, that he had kicked the victim in the face and head repeatedly, causing the victim to lose four teeth and suffer other injuries. He also agreed that he stomped on the victim’s head repeatedly because he was angry, but insisted he had not threatened to kill the victim as claimed.[38]
[36] Ibid, 558-559.
[37] Ibid, 559.
[38] Ibid, 587
Mr Wekerle attempted to contextualise his assault of the victim above as an act of fear, because the victim was older than him and had previously threatened to fight him. He stated that he was carrying the metal baton to protect himself because he had recently had surgery on his arm. It was put to Mr Wekerle that his then girlfriend had made a statement to police asserting it was Mr Wekerle who initiated the attack by hitting the victim ‘in the face continually with a metal baton’ and had also ‘started stomping on his head continuously.’[39] Mr Wekerle claimed his then girlfriend’s statement to police was false. In response to further questions from Mr Orchard, Mr Wekerle conceded his attack on the victim was unprovoked, and Mr Wekerle had not previously made a self-defence claim. Mr Wekerle agreed he had undergone psychological counselling and received support services following this offending.
[39] Ibid, 589.
In relation to the assault committed by Mr Wekerle while serving his initial sentence in a youth justice centre in June 2015, he agreed that he had walked up to the victim who was being restrained and punched him three times to the head. Mr Wekerle explained that the victim lived in the same unit as him and had called him a ‘dog multiple times,’ which Mr Wekerle did not like. He said that if you get called a dog in detention, you had to do something about it, because in jail there are ‘certain rules.’
In relation to the offences Mr Wekerle committed in January 2016,[40] he agreed he had thrown the first punch, explaining that ‘people keep trying to pick on [him] in public’ because he was ‘so small.’ When asked by Mr Orchard if that was a good reason to commit violence, Mr Wekerle responded: ‘No.’
[40] Ibid, 489.
In relation to the offences Mr Wekerle committed in March 2016,[41] he agreed they were committed while he was on bail for the January 2016 offences.
[41] Ibid, 617.
In relation to the offences Mr Wekerle committed in April 2016,[42] he agreed he had punched two victims to the head, had breached his bail and the conditions of CCO’s in force at that time.
[42] Ibid, 531.
In relation to the offences Mr Wekerle committed on 31 August 2016, he stated he had originally intended to go to the Melbourne CBD to locate his cousin and give him ‘a hiding,’ because his cousin would ‘never listen.’ He claimed that his cousin had lied to him, had been avoiding him, was not answering his calls, and ran from him in the CBD, which had made Mr Wekerle mad. He stated that after his cousin fled, Mr Wekerle initiated a fight with an alternate victim, who was a friend of his cousin. Mr Wekerle approached the victim from behind, punching him in ‘the head and face multiple times’.[43] His other cousin and another person subsequently joined in the assault. When Mr Orchard put to Mr Wekerle that he was in a position of responsibility for his two younger co-offenders, Mr Wekerle responded: ‘I’m not their father.’ Mr Wekerle also insisted he had not encouraged his younger co-offenders, contrary to the finding of the court at his 2017 trial.[44]
[43] Exhibit R1, 38 [6].
[44] Ibid.
It was put to Mr Wekerle that, following the initial assault, the victim was sitting at the top of some stairs with blood dripping from head and facial wounds. The court noted a ‘female bystander’ gave Mr Wekerle some ‘tissues and wipes,’ erroneously believing Mr Wekerle was approaching the victim a second time to render assistance.[45] Mr Wekerle insisted the victim was not bleeding at that time. When Mr Orchard put to Mr Wekerle that this claim was inconsistent with the court’s finding, Mr Wekerle responded: ‘the court was not there.’
[45] Ibid, [7].
Mr Wekerle agreed that after returning to the victim, sitting next to him, and putting an arm around him, he then stood up and kicked the victim in the face. He agreed the victim fell backwards and struck his head on the concrete. Mr Wekerle also agreed he had stomped on the victim’s face, but cavilled at the suggestion the victim was unresponsive at this time, claiming the victim had ‘sat back up.’ When asked why he had assaulted the victim a second time, Mr Wekerle claimed he had returned to apologise for the earlier assault, but the victim had called him a dog and told him to ‘fuck off.’ When asked if he had lost control, Mr Wekerle replied: ‘Yes.’ Mr Wekerle agreed the police had not arrested him in relation to this assault until about a month later. When asked by Mr Orchard why he had not handed himself in, Mr Wekerle responded: ‘Because I was thinking I wasn’t going to get caught.’
Mr Wekerle agreed that in the past he had denied aspects of his offending and attempted to minimise his involvement, including during the present hearing. He also agreed that his unwillingness to accept the basic facts of criminal offences found by the court could be seen as reflecting a lack of insight and incomplete rehabilitation. Mr Wekerle agreed that in the past he had repeatedly breached CCO requirements, had committed offences in breach of bail, had stated that he found anger management a ‘waste of time,’[46] and had been assessed in October 2016 by Victoria’s Department of Justice and Regulation as being a ‘high risk of reoffending.’[47]
[46] Exhibit R2, 25.
[47] Ibid.
Mr Wekerle referred to courses he had completed in prison as a sign of remorse and a desire to change his ways to ‘live a better life.’ When asked why he had continued to engage in misconduct in prison after his visa was cancelled in June 2017, Mr Wekerle said although he knew his behaviour was under scrutiny, he ‘didn’t know anything’ about the visa process. When pressed, he stated: ‘I was not in the right head space and I was not in the state of getting help.’
Mr Wekerle was taken through a number of incidents of misconduct recorded in prison,[48] agreeing with the recorded facts of some incidents but disagreeing with others. He agreed that he was involved in physical altercations with other prisoners,[49] but submitted that on one occasion it was the other prisoner who initiated the fight. Mr Wekerle elaborated on some of the incidents of misconduct raised with him:
(a)When asked to explain his assault of another prisoner while serving his initial sentence in a youth justice centre, Mr Wekerle said the other prisoner had called him: ‘a dog multiple times and I don’t like that;’
(b)Mr Wekerle denied throwing a guitar out of his cell door, narrowly missing a prison officer.[50] Mr Wekerle stated ‘this officer always says something that makes me start up with him. This officer asked me to give him the guitar. I didn’t know I wasn’t allowed to have it in my cell. He said give me the guitar or I’ll slap you. I put my foot in the door and asked him what he said. I handed him the guitar…I didn’t shape up to the officer, he shaped up to me.’
(c)Mr Wekerle agreed he told one prison officer to ‘fuck off.’[51]
(d)On two other occasions he agreed that he told two separate prison officers to ‘fuck off you dog;’[52]
(e)Mr Wekerle denied a report dated 18 June 2018 that after being asked to stand at his cell door for a recount, he held up a knife he was using to cut food and said to a female prison officer: ‘I’ll fucken stab you.’[53] He explained that he had not heard what the officer had said to him and approached the door to ask her to repeat what she had said. He contended that although he was holding a knife at the time, the prison officer misinterpreted his intent. In response to further questions, Mr Wekerle submitted the prison officer had made a false report because in prison ‘they have the power, they have the authority, they can do anything they like.’
[48] Ibid, 90; 94;98; 99; 100; 103; 104.
[49] Ibid, 90; 96.
[50] Ibid, 94.
[51] Ibid, 99.
[52] Ibid, 98; 100.
[53] Ibid, 103.
On a number of occasions, Mr Wekerle’s oral evidence was at odds with the findings of the court or diametrically opposed to the weight of influential evidence before the Tribunal. For example, he claimed that nine deal bags of cannabis found in his possession were not his and that he was holding them for a friend. Mr Wekerle denied telling police his reason for possessing cannabis was ‘Having fun,’ despite evidence to the contrary in police records[54] and the DVD recording of his police interview.[55] When it was pointed out to Mr Wekerle that he had admitted to police that the cannabis was his, he had sold one of the ten bags prior to his arrest,[56] and had subsequently pleaded guilty to and was convicted of trafficking, he inexplicably continued to deny ownership of the drugs.
[54] Ibid, 531-32.
[55] Exhibit T1.
[56] Ibid.
Mr Wekerle stated that if released from prison, he would live with an uncle, who would monitor his movements closely and sternly discipline him if he did the wrong thing. Mr Wekerle contrasted this with the time he had spent living with his adoptive parents, where they had not raised a hand against him when he previously misbehaved. The Tribunal inferred from Mr Wekerle’s evidence that the prospect of violent enforcement of domestic rules by the uncle he proposed to live with if released, would deter him from committing further offences or getting mixed up with the ‘wrong crowd.’ When Mr Wekerle was asked why there was no recent statement from the uncle in question[57] and why he had not called the uncle as a witness, Mr Wekerle stated that the uncle had confirmed the undertakings about accommodation and other support verbally by telephone.
[57] There is a brief, undated statement from the uncle at Exhibit R1, 87, received on 12 September 2018.
Mr Wekerle claimed he had learned a lot in jail. He expressed regret for his criminal offending and said that since being taken into immigration detention, he was ‘being obedient to the officers’ and had ‘changed the way [he] talks.’ He acknowledged that he had wasted previous opportunities, but had benefitted from imprisonment and immigration detention by taking stock of his life and finding renewed determination to change his ways. Mr Wekerle said that if released into the community he would not be a threat and intended on living a law-abiding life. He aspired to find a job, restore his relationship with his adoptive parents, pursue his interest in sports, and make sure that he chose the right friends.
Mr Wekerle stated: ‘I know that my problem is anger’ and that he would commit to counselling with a psychologist and the Youth Support and Advocacy Service (YSAS) Program if released. He did not want to go back to the ‘old me’ and risk killing someone that would cause him to spend the rest of his life in jail. He claimed that he had made progress recently by giving up smoking. He also submitted that he had resisted approaches from ‘bikies outside jail’ who asked him to ‘join them.’
Mr Wekerle said his adoptive parents were ‘very scared’ at the prospect of his removal to New Zealand. He had never been to New Zealand, doesn’t know anyone there, and risked being socially isolated, homeless and without work.
When given an opportunity to elaborate on the claims in his most recent statement about a partner and nieces and nephews, Mr Wekerle provided the name of the person he claimed was currently his partner, submitting they had ‘started off last year.’ He said he had met his partner once before going to jail and she had contacted him after he was taken into immigration detention in September 2018, to ask if he would ‘date her.’ The Tribunal notes there is no statement or other corroborating evidence from Mr Wekerle’s purported new partner.
When asked why the nieces and nephews he was referring to in his most recent statement had not been included in his previous Personal Particulars Forms, Mr Wekerle stated he had a relationship with children whose interests would be affected by non-revocation of his visa cancellation. When asked their names and ages, Mr Wekerle refused to disclose this information. When the requirements of the primary consideration relating to the interests of minor children were explained to him, Mr Wekerle responded: ‘I understand that, but I’m not in a position to give their names and details.’ When pressed further, Mr Wekerle confirmed he had not spoken to the children he was referring to for three years, had no direct parental role, and his claims were more of an aspiration to have a closer relationship with these children in the future. He said that at the moment the parents and guardians of the children in question didn’t want him around because of his incarceration. When the Tribunal asked Mr Wekerle how it could be that he had nieces and nephews in Australia when he previously stated his two siblings live in Samoa,

Mr Wekerle said the children in question called him ‘uncle,’ but were not his sibling’s children. The Tribunal finds Mr Wekerle’s evidence about children under 18 in Australia to be unpersuasive at best.
TRIBUNAL CONSIDERATION
Does Mr Wekerle pass the character test?
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds that Mr Wekerle does not pass the character test. Given that Mr Wekerle does not pass the character test, he cannot satisfy s 501CA(4)(b)(i) of the Act.
Issue to be resolved
Accordingly, what remains to be determined, is if there is ‘another reason’ to revoke the mandatory cancellation of Mr Wekerle’s visa pursuant to s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[58] which I adopt:
“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…”
[58] [2016] FCA 1166 at [38].
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(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.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a 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 seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as 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;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: Nature and seriousness of the conduct

The seriousness of Mr Wekerle’s conduct is evident from his National Police Certificate, the 2017 sentencing remarks from the Melbourne County Court, and the documents obtained under summons from other courts, Victoria Police, and Corrections Victoria. Mr Wekerle’s initial violent offences were committed in February 2015 when he was aged 18, which resulted in a six-month sentence in a youth training centre. He committed further violent offences while serving that sentence. After being released, he was convicted of additional violent offences in May 2016 and April 2017.
Mr Wekerle has previously been afforded opportunities to reform himself and live a law-abiding life. The court chose to deal with some of his offending by imposing CCO’s and community work instead of imprisonment. The evidence shows Mr Wekerle has not taken advantage of the court’s leniency or rehabilitative opportunities. He committed offences while in custody and on conditional liberty. He has contravened CCO’s and resisted attendance at counselling and treatment opportunities. The repeat nature of his offending reflects a concerning lack of insight, remorse and respect for Australia’s law enforcement framework. His previous expressions of remorse and intent to live a law-abiding life have been followed by further offending. Consequently, his latest expressions of remorse and intent to live a law-abiding life do not ring true and are considered unreliable.
The cumulative effect of Mr Wekerle’s offending has imposed considerable harm and costs. This includes serious injuries suffered by some victims, and the costs of dealing with his violent conduct by the police, courts and custodial institutions in particular. The Tribunal finds that Mr Wekerle’s criminal offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)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).
The Direction acknowledges the community’s acceptance of some risk regarding the conduct of non-citizens, depending on its seriousness. The Australian community expects people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.
If Mr Wekerle were to commit further violent offences, the nature of harm to members of the Australian community could include death or serious injury. In relation to assessing whether an applicant represents an unacceptable risk of harm, the Tribunal notes the Full Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR at [493], that neither the ordinary meaning of the term ‘real risk,’ nor any requirement of the law, required that the term be assessed solely on a quantitative basis. Their Honours held that when assessed in a qualitative sense, a real risk is one that ‘is not remote, far-fetched or fanciful.’ It follows that there is no inconsistency in finding that a risk can be real, despite the probability of it occurring being quantitatively low or minimal.
The Tribunal notes from the evidence that Mr Wekerle has no diagnosed medical or psychological conditions and claims to have never consumed alcohol or drugs. He explains his offending primarily with reference to his anger issues and mixing with the wrong crowd.[59] The Tribunal notes Mr Wekerle has taken some rehabilitative steps, which are reflected in part by certificates of achievement, completion and participation,[60] and the letter from YSAS dated 14 February 2019.[61]
[59] Exhibit R1, 83; Exhibit R2, 10.
[60] Ibid, 91-101.
[61] Exhibit A4.
The Tribunal notes a letter of support for Mr Wekerle from Youthworks and the records confirming his completion of a Certificate II in Electrotechnology and a Certificate III in Warehousing operations. These documents were prepared for the court prior to his sentencing in June 2015.[62] The letter from Youthworks states Mr Wekerle was ‘working to re-engage back into education, training and employment,’ had ‘realised the severity of his actions,’ and had expressed ‘contrition and remorse.’ A pre-sentence report prepared by the Department of Health and Human Services at the time stated:[63]
Mr Wekerle appears to have taken responsibility for his actions…Mr Wekerle has verbalised a willingness to address his offending behaviour, and is engaged in anger management counselling…where he attends weekly appointments…Mr Wekerle has served no prior custodial sentences and has not been subject to any previous community dispositions with Youth Justice. It is the writer’s assessment that these factors bode well for his rehabilitation…Mr Wekerle reports that his offending occurred within the context of an impulsive reaction and limited awareness of how to manage his anger issues from previous trauma, rather than being of a calculated nature.
[62] Exhibit R2, 1-3.
[63] Ibid, 5-6.
The support and counselling Mr Wekerle received, however, did not stop his violent offending. He committed further violent offences in June 2015 while serving his sentence at the youth training centre. Mr Wekerle contextualised this offending in his oral evidence as intervening to stop a fight, ‘but things escalated…he hit me first.’ When asked why he did not just walk away when purportedly confronted with aggression during another incident on 24 January 2016, Mr Wekerle responded: ‘I tried, but he kept walking up to my face – because I was so small and he was so big.’ Mr Wekerle agreed he had thrown the first punch and had also punched and kicked the victim in company with others. Mr Wekerle also agreed that he had told police the reason for assaulting the victim by kicking was: ‘I was pissed off, when you get into a fight everything goes, you don’t just stop.’[64]

Mr Wekerle explained: ‘People keep trying to pick on me in public because I’m small.’
[64] Ibid, 490.
A progress report from the Department of Health and Human Services dated

12 November 2015[65] noted that Mr Wekerle had engaged in one-on-one psychological counselling with the Youth Health and Rehabilitation Service (YHaRS).[66] Some ‘unresolved childhood trauma’ was noted, but Mr Wekerle was reported to be ‘very guarded’ and not forthcoming about this. The report also notes he had engaged ‘excellently’ with Youth Justice, YHaRS and the YSAS[67] following his release from custody, and that:
…he appears to be making positive steps towards his transition into the community and is engaging in services that are assisting him in his rehabilitation and life skills.
[65] Ibid, 7-11.
[66] Ibid, 8; 10.
[67] Ibid, 12.
The Tribunal notes that after being released from the youth training centre in September 2015, Mr Wekerle commenced a Victorian Certificate of Applied Learning, but was asked to leave the course after acting aggressively towards another student.[68] Within a year of being released from his first period of detention, Mr Wekerle committed further violent offences, for which he was sentenced in the Melbourne Magistrates Court on 26 May 2016. This included violent offences while he was on bail and subject to the provisions of a CCO. In August 2016 he committed further violent offences, for which he was sentenced in April 2017. The Tribunal notes that bail was refused prior to trial and Mr Wekerle spent 203 days in pre-sentence detention.[69]
[68] Ibid, 9.
[69] Ibid, 18-19.
It is noteworthy that Mr Wekerle’s compliance with reporting, community work, and supervision aspects of his CCO can only be considered poor. He failed to attend on 17 required occasions between 23 December 2015 and 5 September 2016.[70] The Tribunal does not accept Mr Wekerle’s explanation that his non-compliance resulted from competing work requirements. On his own evidence, Mr Wekerle only claims to have engaged in employment from approximately June to November 2015, and from April to September 2016.[71] His CCO attendance failures often fall outside of these periods. Dandenong Community Correctional Services noted the following in relation to Mr Wekerle’s engagement with his CCO:[72]
[70] Ibid, 23.
[71] Exhibit R1, 68; 78.
[72] Exhibit R2, 21-26.
Response to Community Corrections Order
…
…On some occasions he was polite and reasonable, on others he was disrespectful appearing agitated and behaving inappropriately.
Mr Wekerle’s general presentation during supervision was resistance to the community corrections orders and the conditions directed to him by the court. The pattern continued throughout supervision appointments and it is noted Mr Wekerle did not think he needed assistance with anger management and did not want to address his offending behaviour through treatment therefore his risk of reoffending remained high.
Mr Wekerle failed to attend…as outlined in the noncompliance table. He detailed employment as the primary reason for non-attendance but failed to provide documentation from his employer to that affect.
Mr Wekerle failed to engage with this condition of the order.
…
Mental Health
Mr Wekerle reported he had previously engaged with YSTOP for counselling…This service discussed Headspace as an alternative service…This service offered to Mr Wekerle for the case manager and youth liaison worker to accompany him to Headspace to meet with staff and discuss their counselling/programs and how they could support him throughout his order…Mr Wekerle presented to this service agitated and behaved in an inappropriate manner to staff, therefore, the appointment did not go ahead.
During future supervision appointments Mr Wekerle was resistant to complying with this condition of the order.
This condition has not been fulfilled.

Community Work
Mr Wekerle was contracted to… commence on 18.07.2016. Mr Wekerle attended for a full day on 18.07.2016 and partially attended on four other occasions.
Mr Wekerle was contracted to attend a two day Occupational Health and Safety and Chemical Handling Course on 20.08.2016 and failed to attend this course.
Mr Wekerle failed to attend on eight occasions as per the non-compliance table.
This condition has not been fulfilled.
…
Anger Management
Mr Wekerle was referred to the Salvation Army Positive Lifestyle Program to attend an Anger Management course. …Mr Wekerle reported to this service he did not want to attend the program stating, “it is a waste of my time and does not need it, you can’t force people to do stuff they don’t want to do” and further denied he had an anger management [issue] which needed to be addressed.
Mr Wekerle reported he had completed a similar program with DHHS Youth Justice one on one sessions with a psychologist. Mr Wekerle reported he attended the sessions however he did not implement the strategies in his life as he believed anger management was not an issue for him. Mr Wekerle agreed to sign the referral to the program however failed to engage with the service to commence the program.
This condition has not been fulfilled.

Conclusion and Recommendations
…
While reporting to this service Mr Wekerle on occasions presented agitated and inappropriate with staff. Mr Wekerle has incurred a total of seventeen unacceptable absences across all conditions of the orders and has shown a clear resistance to attending psychological treatment and programs to address his offending behaviour with his risk of reoffending remaining high.
Mr Wekerle is before the court for alleged further offences and if proven will contravene the current CCO. It appears that Mr Wekerle has failed to avail himself of the opportunity as afforded by the court and the imposition of this order has not been successful.
Mr Wekerle has not complied with any of the three orders he is currently subject to. It is respectfully recommended that the order is cancelled and Mr Wekerle is re-sentenced on the original charges before the court.
On a number of occasions during the current hearing, Mr Wekerle’s evidence did not ring true. He left the impression that he was seeking to minimise his involvement or shift blame in relation to his violent conduct. His explanations about incidents raised with him were often self-serving and unpersuasive, highlighting Mr Wekerle’s tendency to reconstruct events to his perceived advantage. The Tribunal does not accept Mr Wekerle’s claims that his offending was substantially attributable to mixing with the ‘wrong crowd.’ The evidence shows he was the instigator in much of the offending he was convicted of. The Tribunal is particularly concerned that some of Mr Wekerle’s submissions were at odds with the findings of the court. As held in Maxwell v R[73], it is settled law that a plea of guilt constitutes an admission of all the essential elements of an offence. The Tribunal also considers the records in evidence from authorities like the police and Corrections Victoria are more reliable than Mr Wekerle’s reconstructed recollections. The Tribunal is unpersuaded by Mr Wekerle’s claims that his violent offending is explained in part by more liberal laws in Samoa relating to fighting and public violence, and that he ‘couldn’t understand [he] couldn’t commit violence’ in Australia. It would certainly have been apparent to Mr Wekerle after his initial convictions for violent offending in 2015 that such conduct was illegal, yet he went on to commit numerous violent offences in subsequent years, and engaged in further violent conduct while imprisoned.
[73] Maxwell v R [1996] HCA 46; 184 CLR 501, at [19].
Mr Wekerle’s expressions of contrition can only be considered incomplete given his persistent lack of insight into his offending. Someone truly contrite would not have continued to commit violent offences after initially being imprisoned. A person who was truly remorseful would not have engaged in frequent misconduct while imprisoned. That is particularly so in circumstances where the person was on notice that their ability to retain an Australian visa was also at risk. In Mr Wekerle’s case, he was on notice that his visa status was at risk since at least mid-2017, but he continued to engage in violent, boorish and abusive behaviours while imprisoned. His misconduct only adds to concerns about the extent of his insight, remorse and risk of recidivism.
The Tribunal is unpersuaded by Mr Wekerle’s reliance on a renewed determination not to reoffend since being taken into immigration detention in September 2018, or his claims about the strict supervision of an uncle as key preventative factors in mitigating his risk of recidivism. Any renewed determination by Mr Wekerle is relatively recent and entirely untested in the community. The only correspondence in evidence from the uncle in question is a brief undated letter containing no address or other contact details. The letter offers ‘full support to seek counselling for Koli upon his release and stay with us.’[74] The uncle did not give oral evidence at the hearing and could not be cross-examined about what support he would provide if Mr Wekerle is released. The Tribunal places little weight on what is a very general letter of support.
[74] Exhibit R1, 87.
Even if Mr Wekerle were able to live with a disciplinarian uncle as he contends, the Tribunal notes he has previously distanced himself from the sort of strict domestic environments that he now contends will successfully constrain his propensity for violence. He claims to have run away from his biological mother in Samoa after she remarried, because of the very strict, religious and disciplinary nature of the home environment. The Tribunal also notes police records in evidence referring to Mr Wekerle’s unwillingness to comply with the rules of his adoptive home in Australia, which he also describes as religious and strict. Such was the nature of Mr Wekerle’s disrespectful, threatening and intimidating behaviour at the home of his adoptive parents, that FVIO were imposed, which Mr Wekerle subsequently breached. His adoptive parents eventually asked him to leave the family home. Mr Wekerle’s evidence is that the police have told him he cannot stay at the home of his adoptive parents if released into the community. The Tribunal does not accept Mr Wekerle’s submission that the constant supervision of a disciplinarian uncle is genuinely in prospect on the evidence, or that it constitutes a persuasive preventative factor mitigating his future risk of recidivism.
The Tribunal is particularly concerned that Mr Wekerle refuses to fully acknowledge his personal responsibility for the violent offences he has been convicted of and continues to display incomplete insight. The repeat nature of his violent offending and unwillingness to cooperate with the conditions of his CCO also casts grave doubt on his submissions that he no longer constitutes a risk to the community. Mr Wekerle said on a number of occasions that he had ‘no one to talk to’ or advise him, yet the evidence shows when given those counselling and rehabilitative opportunities, he behaved inappropriately to staff, resisted attendance at psychological treatment and programs to address his offending behaviour, and failed to comply with the conditions of CCO’s. His claim that he is now ready to engage more positively with counselling and rehabilitation opportunities only comes after the decision not to revoke the cancellation of his visa, and is unpersuasive at best.
It is noteworthy that Mr Wekerle’s offending traverses most of his adulthood. He was 18 years of age at the time of his initial violent offences and much of his six-year stay in Australia has been characterised by repetitively violent criminal conduct. The Tribunal concludes that Mr Wekerle’s criminal offending is objectively very serious and has caused serious harm in the past. His risk of reoffending is unacceptably high. This primary consideration weighs strongly against revocation of his visa cancellation.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether or not to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at paragraph 13.2(4) to 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);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

Mr Wekerle has no biological children. His claims about nieces and nephews whose interests are enlivened in this matter is not accompanied by any corroborating evidence and is unpersuasive. The children he refers to are not his biological nieces and nephews, but he claims they call him ‘uncle.’ Mr Wekerle made no previous claim about these children in his Personal Circumstances Forms[75] and only refers to them generally in his most recent statement. When asked during cross-examination for the names of his nieces and nephews, Mr Wekerle refused to disclose this information. He said he had not spoken to the unnamed children for more than three years and had no direct parental role in their care. In response to questions, he agreed that his claims about these children were more of an aspiration to have a closer relationship in the future if released; something that was not currently open to him because the parents and guardians of the children did not approve.
[75] Ibid, 64-65; 71-79.
The Tribunal finds that the evidence is insufficient to identify any children whose interests may be affected by a decision in this matter. This primary consideration is neutral in its effect and weighs neither in favour of nor against revocation of Mr Wekerle’s visa.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
‘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.
Although community expectations are ultimately a matter of judgement for each decision-maker, they turn on the specific circumstances of each case and must be able to be explained.[76] Deputy President Frost of this Tribunal has previously elaborated on the difficulty of distilling the expectations of the Australian community:
…[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.[77]
[76] Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
[77] Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
Regard must also be had for the guidance at paragraph 6.2(1) of the Direction 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 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.
The Tribunal acknowledges that pursuant to paragraph 13.3 of the Direction, it should have regard for the Government’s views that non-revocation ‘may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa.’
Mr Wekerle spent the first 15 years of his life in Samoa and the last seven years in Australia. The court has shown leniency to Mr Wekerle on a number of occasions by imposing CCO’s and unpaid community work for some offences. He has squandered those opportunities, with the court finding that a CCO Breach Report regarding Mr Wekerle’s attitude to non-custodial opportunities was ‘damning.’[78] Mr Wekerle’s criminal history shows he was not previously dissuaded by bail, other conditional liberty arrangements, or the risks to his visa status, from committing further violent offences or engaging in repeated misconduct while imprisoned. He has failed to fully engage with the rehabilitative opportunities made available to him. Mr Wekerle’s reliance on poor English and lack of awareness about Australian law as contextual factors in his violent offending does not ring true. Ignorance of the law is no excuse. Moreover, as a multicultural society, Australians accept cultural differences, but never as an excuse for repetitive violence, particularly when it has the potential to inflict devastating physical and other consequences. Given the specific circumstances of this case, the Australian community would not be sympathetic to Mr Wekerle’s request for a further ‘second chance.’
[78] Exhibit R1, 4 [14].
Informed of the specific circumstances of this case, the broad middle ground of Australian society, would consider Mr Wekerle’s conduct to be inconsistent with reasonable expectations of a visa holder. Their tolerance for any further risk of harm would be very low. Any sympathy that might have been extended to Mr Wekerle and his adoptive family would be substantially outweighed by his repeated violent offences, incomplete insight and negative attitude to engaging with the rehabilitation required by his CCO’s.
The Tribunal finds that the Australian community would expect the mandatory cancellation of Mr Wekerle’s visa not to be revoked. This primary consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
As Allsop CJ and Katzmann J held in NBMZ[79] at [22], the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant:
[22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances.
[79] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ).
The Tribunal is required to engage with Mr Wekerle’s submissions, irrespective of whether any claims he makes are unambiguously expressed as Convention-related harm.[80] In one of his earlier statements dated 13 November 2018, Mr Wekerle states:
…if I was to be deported to New Zealand I’m afraid that people will beat me on the streets because there’s so many gangs in there not only gangs but bikies as well I heard that my victim has been removed from here and returned to New Zealand and I’m really scared that I might end up in jail in New Zealand or something might happen to me if I go there because he’s there and I can’t bare the feeling of shame and disgrace that I brought upon my family and victims… [81]
[80] Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and entered into force 22 April 1954, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
[81] Exhibit R1, 90.
When asked about these claims during the hearing, Mr Wekerle said his concerns about bikies and gangs arose from watching YouTube and from social networking sites like Instagram and Facebook. He had discerned from watching ‘videos’ that gangs and bikies fight on New Zealand streets and ‘people from Australia will get bashed.’ He made no protection claims in relation to Samoa.
The Tribunal finds Mr Wekerle’s submissions to be very general in nature and insufficient to sustain a finding that he is at risk of serious harm or death or persecution or other Convention-related harm within the meaning of the Act. Most of his submissions relate to the practical effects of repatriation; finding somewhere to live, a job, or sufficient funds to sustain him. These are dealt with under Extent of impediments if removed later in these reasons.
This consideration is neutral in its effect and weighs neither for nor against revocation.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… 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 has 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).
Mr Wekerle has spent approximately seven years in Australia and submits that he has completed Years 9 and 10 at high school and some TAFE studies. When asked about positive contributions he has made to Australia, Mr Wekerle noted some volunteer work at ‘church and youth.’[82]
[82] Ibid, 68; 78.
Mr Wekerle’s offending began approximately two and a half years after his arrival in Australia and he has continued to reoffend at regular intervals since. There is a dearth of evidence about any meaningful positive contribution he has made in Australia since arriving here. In his Personal Particulars Forms Mr Wekerle lists two relatively brief periods of work as a ‘Back Packer’ from June to November 2015, and as a ‘Labourer’ from April to September 2016.[83] He confirmed those two periods of work in response to questions from Mr Orchard. It remains unclear to the Tribunal how Mr Wekerle could have been employed from June to November 2015, when he was sentenced to six months in a Youth Training Centre commencing in June 2015. In any event, the Tribunal finds that any positive contribution Mr Wekerle may have provided to the Australian community through employment or volunteer work at church is scant at best and is significantly outweighed by his criminal and other misconduct. On a purely quantitative basis, Mr Wekerle has spent much of his adulthood in Australia in prison, on conditional liberty, or immigration detention.
[83] Ibid.
Mr Wekerle’s evidence is that his biological mother, stepfather, grandmother, two siblings, some uncles, and cousins live in Samoa. He refers only to his adoptive parents and one uncle that reside in Australia. None of his relatives in Australia or people who submitted statements in support of Mr Wekerle gave evidence at the hearing and were therefore unavailable for cross-examination. In the absence of such evidence, making reliable conclusions about the current strength, duration and nature of any family or social links Mr Wekerle has with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, is problematic.
Mr Wekerle asks the rhetorical questions in his most recent statement: ‘How will my parents feel when I’m not around anymore? Who’s gonna help them when they need help? Who’s going to look after my parents?’ On the evidence before the Tribunal, Mr Wekerle has been precluded by FVIO’s from approaching his parent’s home for protracted periods between 2013 and 2015. His oral evidence is that he has been told by police that he cannot live with his adoptive parents if released because he keeps offending from that address. There is no evidence before the Tribunal that Mr Wekerle’s adoptive parents have been reliant on his contribution or care in the past. To the contrary, the evidence suggests they have done all they can to support him and continue to offer their support if he is released. But, in the absence of a recent statement or any oral evidence from Mr Wekerle’s adoptive parents, the Tribunal is unable to rely on Mr Wekerle’s word alone about any effect his potential removal from Australia might have on them.
The Tribunal is unable to make a finding that Mr Wekerle’s adoptive parents will be affected ‘mentally and physically’ as he claims by a decision not to revoke the cancellation of his visa. The Tribunal notes that his adoptive mother makes no reference in a letter dated 13 April 2018[84] to suffering any mental or physical conditions arising from his visa troubles. She does state, however, that she and her husband would ‘suffer tremendously by not having him here in Australia.’ The Tribunal is reasonably satisfied Mr Wekerle’s adoptive parents would be saddened if he was unable to remain in Australia and would suffer emotional hardship. They would likely worry about the practical implications of his resettlement in New Zealand or perhaps in Samoa if that were possible. There is no evidence, however, that they would be unable to visit him at either location, or to otherwise support him from Australia if they wished.
[84] Ibid, 81.
For the reasons previously adduced, the Tribunal places no weight on Mr Wekerle’s claims about the partner he refers to in his most recent statement, from whom there is no evidence before the Tribunal. Given the absence of any evidence from the parents or guardians of the nieces and nephews whose interests Mr Wekerle relies upon, coupled with his unwillingness to disclose the names or other details of these children, the Tribunal places no weight on those relationships in the context of this consideration.
The Tribunal finds that Mr Wekerle may have had stronger family, social and emotional ties to the Australian community when he was younger, but the strength and nature of those ties is unclear at the time of these reasons. It is accepted that Mr Wekerle’s adoptive mother in particular has done her best to stand by and support him under very difficult circumstances, but her most recent statement is almost a year old and her willingness to continue to support Mr Wekerle in the future is unclear at best. While it can be accepted on the evidence that this consideration weighs in favour of revocation, it only does so slightly.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by a decision not to revoke the mandatory cancellation of Mr Wekerle’s visa. This consideration is neutral in its effect and weighs neither for nor against revocation.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal from the victims of Mr Wekerle’s offending or their families. The Tribunal finds this consideration is neutral in its effect and weighs neither for nor against revocation.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
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.
Mr Wekerle states in his Personal Circumstances Forms that he has no diagnosed medical or psychological conditions.[85] His evidence is also that he does not drink alcohol or take illicit drugs. He also states that although he is a New Zealand citizen, he has no ties to anyone in New Zealand and has not previously been to New Zealand, which the Tribunal accepts. Mr Wekerle expresses his concerns about repatriation to New Zealand as ‘I won’t have nowhere to live and family members or any house to stay or money to finance myself.’
[85] Ibid, 69; 77.

When asked his response to possible repatriation to Samoa if his application was unsuccessful, Mr Wekerle stated: ‘Samoa won’t accept people that’s getting deported so I don’t know where to go now.’[86] It remains unclear to the Tribunal what Mr Wekerle’s status might be with respect to Samoan citizenship. His unchallenged evidence is that he was born in Samoa to Samoan parents, and spent the first 15 years of his life there until 2012. The Tribunal sought advice from the Respondent on this issue. Mr Orchard sought instructions and advised on 1 April 2019 that:
(a)Mr Wekerle had only ever used a New Zealand passport to travel to and from Australia;
(b)According to the available movement records Mr Wekerle has not previously travelled to or from New Zealand to Australia. He originally entered Australia directly from Samoa on a New Zealand passport; and
(c)Mr Wekerle is a citizen of New Zealand and there is no information currently in the Department’s possession that he is also a citizen of or eligible for citizenship of Samoa.
[86] Exhibit A1 [1].
Submissions by Mr Orchard for the Respondent focussed exclusively on Mr Wekerle’s repatriation to New Zealand. However, the Tribunal finds it necessary, given the specific circumstances of this case, to also consider the extent of any impediments if Mr Wekerle’s repatriation to Samoa emerged as a possibility. The Tribunal accepts Mr Wekerle’s unchallenged evidence that he only became a New Zealand citizen and was issued with a New Zealand passport in the context of his adoptive parent’s decision for him to join them in Australia. The Tribunal notes that New Zealand’s culture and language presents no impediment to Mr Wekerle being repatriated there. He is 22 years old and on the evidence before the Tribunal has no medical, psychological, or dependency issues preventing him from working or establishing himself in New Zealand. There is also a large Samoan expatriate community in New Zealand and support organisations comparable to those in Australia who may be able to assist him. The Tribunal notes Mr Wekerle’s concerns that he won’t be able to find a job in New Zealand, but also notes he has undertaken some vocational qualifications, including a Certificate III in Warehousing Operations.[87] There is no evidence that Mr Wekerle would not have the same opportunities to search for work or access income support payments as any other New Zealand citizen.
[87] Exhibit R1, 99-101.
Notwithstanding the current lack of evidence about Mr Wekerle’s Samoan citizenship status or entitlement to Samoan citizenship, the Tribunal notes he was born there, spent the first 15 years of his life there, and the majority of his direct family continue to reside there. If it were to emerge that Samoa is a repatriation option for Mr Wekerle, the Tribunal does not consider there are cultural or language impediments to his resettlement to Samoa. There is no evidence that Mr Wekerle would not have the same opportunities to search for work or access support entitlements available to Samoan citizens.
Although this consideration weighs in favour of revocation, the Tribunal finds it only does so slightly.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Wekerle’s application as provided for at paragraph 14(1) of the Direction.
CONCLUSION
Having regard to the combined effect of sections 501(6)(a) and 501(7)(c) of the Act, Mr Wekerle does not pass the character test. He was serving a full-time sentence of imprisonment at the time the original decision was made to cancel his visa, which means it was liable for mandatory cancellation under section 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of Mr Wekerle’s case.
Significant weight is placed on the serious, violent and repeat nature of Mr Wekerle’s criminal offending. The nature of harm resulting from a repeat of such offences could include serious injury or death. It is a risk that is unacceptable to the Australian community, who would expect the mandatory cancellation of his visa not to be revoked. The Tribunal does not accept that Mr Wekerle has been rehabilitated as he contends, or that the strategies he relies upon to prevent future recidivism are reliable.
The Tribunal concludes there is not another reason why the decision to cancel Mr Wekerle’s visa should be revoked. That is because the cumulative effect of the two primary considerations relevant in this matter; Protection of the Australian community and Expectations of the Australian community, outweigh any other considerations favouring revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

...................[sgd]...............................................
Associate
Dated: 3 April 2019

Dates of hearing: 27 March 2019

Applicant: Self-represented

Solicitors for the Applicant: Sparke Helmore Lawyers

Advocate for the Respondent: Mr Christopher Orchard

[2019] AATA 630

3 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Dates of hearing:	27 March 2019
Applicant:	Self-represented
Solicitors for the Applicant:	Sparke Helmore Lawyers
Advocate for the Respondent:	Mr Christopher Orchard