appellant. The decision under review was set aside.
Key principles
On the facts of this review, the Tribunal exercised the discretion under s 501(2) of the Migration Act 1958 not to cancel Mr Puafisi's visa after weighing the Direction No 41...
In applying Direction No 41, the Tribunal treated the five years of ordinary residence before Mr Puafisi's first recorded offending as not favourable to him, but not as a...
Issues before the court
Whether Mr Puafisi failed the character test and whether the visa-cancellation discretion should nevertheless be exercised in his favour.
How the protection of the Australian community should be assessed, including the risk of reoffending.
How the length of ordinary residence before criminal activity should be weighed.
Whether the best interests of Mr Puafisi's minor child favoured his remaining in Australia.
Cited legislation
1 cited instrument linked from this judgment.
Plain English Summary
The Tribunal accepted that Mr Puafisi failed the character test because of his criminal record, but that did not automatically determine whether his visa should be cancelled. It weighed the considerations required by Direction No 41. It found that his risk of reoffending was minimal, his five years of residence before offending were neutral, and his 14-year-old daughter's interests favoured him remaining in Australia. It also considered his partner and family in Australia and the hardship of return to Tonga. Although it noted his previous warning, the Tribunal set aside the cancellation decision.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,275 words · generated 30/09/2026
What happened
In Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, the Administrative Appeals Tribunal reviewed a delegate’s decision to cancel Tapukesolova Puafisi’s visa under s 501 of the (Cth). Deputy President Handley set that decision aside.
Migration Act 1958
Mr Puafisi was born in Tonga and arrived in Australia in January 1985, aged 30. He became a permanent resident in 1994. Between 1990 and 2007 he accumulated a series of convictions, including assaults, breaches of domestic violence orders, property damage and an aggravated indecent assault for which he received a 12-month sentence. He also received further prison sentences in 2005. The Tribunal recorded that there was no dispute that he failed the character test because of his substantial criminal record.
There had already been visa-cancellation proceedings. After an earlier cancellation and review process, a Full Federal Court decision in an unrelated matter led the Department to consider the earlier decision affected by jurisdictional error. The judgment records that s 501HA was inserted into the Act in September 2008 to enable cancellation of a visa of the class held by Mr Puafisi. A delegate again cancelled his visa, and he applied to the Tribunal for review.
The Tribunal heard evidence from Mr Puafisi, his partner Merle Byrne, his daughters Tallara and Lelaine, and forensic psychologist W John Taylor. It also considered the parties’ submissions. Its task was not to decide whether the convictions were correct, but whether the cancellation discretion should be exercised after applying Ministerial Direction No 41. The Tribunal concluded that it should not, and set aside the decision.
The judgment’s paragraph sequence can be read as running from [1] to [67], consistent with its certification of 67 preceding paragraphs. The references below use that sequence.
Why the court decided this way
The first important distinction was between failing the character test and the separate question whether to cancel the visa. The Tribunal accepted that the sentence history brought Mr Puafisi within the substantial-criminal-record provisions described in ss 501(6) and 501(7). But it treated that as opening the discretion under s 501(2), not as deciding how that discretion had to be exercised. Direction No 41 required attention to specified primary considerations and, where relevant, other considerations.
Community protection was a primary consideration. The Tribunal accepted that a number of the offences were serious, particularly violent and sexually based offending. It also noted that Mr Puafisi disputed or sought to explain some convictions. The Tribunal did not determine those disputes in a way that contradicted the convictions. Relying on Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, it said it could not go behind convictions or make findings inconsistent with their essential underlying facts [17].
The Tribunal then considered the risk of repetition. It recorded the psychologist’s assessment of a generally moderate risk and evidence that alcohol could reduce Mr Puafisi’s control. It also recorded the Minister’s submission that his accounts of the offending showed he had not taken responsibility, and that his 2007 conviction occurred after his relationship with Ms Henry had ended. Those matters were relevant counterweights to the applicant’s case.
Ultimately, the Tribunal found that most of the offending occurred in the context of the relationship with Ms Henry and alcohol abuse. It considered that Mr Puafisi had significantly reduced his drinking after living with Ms Byrne, and that their relationship had a stabilising influence. It also noted that the psychologist’s assessment had not taken account of age and stability of circumstances. On the evidence before it, the Tribunal found the overall risk of reoffending low and the risk to the Australian community minimal [35]-[38]. That is a fact-specific finding, not a general rule that alcohol-related offending or a new relationship necessarily reduces risk.
The residence consideration was also addressed carefully. Mr Puafisi had five years’ ordinary residence before the conduct underlying his first listed conviction. Direction No 41 stated that more favourable consideration was given the longer the period of residence before criminal activity. The Tribunal relied on Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536, which focused on the period before criminal activity rather than total residence. It treated the five years as neutral: not favourable to Mr Puafisi, but not a factor counting against him [39]-[42].
Tallara’s best interests were a primary consideration. She was 14 and described the practical and emotional support her father had provided, as well as her distress at the possibility of his removal. She had been removed from her mother’s care because of concerns about her mother’s alcohol use and was living with her half-sister in Queensland. The Tribunal considered that she wanted to remain with her half-sister while maintaining close contact with her father. It found the relationship close and concluded that removal would have a significant adverse effect on her. It therefore found it was in Tallara’s best interests for Mr Puafisi to remain in Australia [43]-[51].
The other considerations included the effect on Lelaine, Ms Byrne and Mr Puafisi himself. The Tribunal accepted that removal would cause significant hardship by separating him from his family in Australia. It also took account of his age, limited practical connections to Tonga, and the fact that he had last been in contact with family there in 2007. The formal warning given in 2005 remained relevant: the Tribunal noted that Mr Puafisi had been told that further offending could lead to cancellation being reconsidered [66].
In its final weighing, the Tribunal gave greater weight to the primary considerations, as Direction No 41 required. It found community protection to be a minimal risk, residence to be neutral, and Tallara’s interests to favour Mr Puafisi remaining. The other considerations also favoured him. The Tribunal concluded that the discretion not to cancel should be exercised in his favour [66]-[67].
Before and after state of the law
The judgment describes the statutory and policy framework as it stood when the Tribunal decided the review. Under the provisions quoted, a person failed the character test if they had a substantial criminal record, including a sentence of imprisonment of 12 months or more, or qualifying combined sentences. The Tribunal recorded that Mr Puafisi’s 12-month sentence in 2003 and later prison sentences meant that his failure of the character test was not disputed.
The next step was discretionary. Section 501(2) provided the power considered by the Tribunal, and Direction No 41 governed how that discretion was to be exercised. The Direction distinguished primary considerations, including community protection, residence before offending and relevant international obligations such as the best interests of the child, from other relevant considerations, which generally carried less weight.
The judgment also gives a specific account of the prior statutory context. It says a Full Federal Court decision in an unrelated matter found that s 501 could not be used to cancel a transitional permanent visa. The Department then considered the earlier decision in Mr Puafisi’s matter affected by jurisdictional error. Parliament inserted s 501HA in September 2008 to enable cancellation of a visa of the class he held [7]. This is the background to the later review, rather than a holding by the Tribunal that resolves the broader statutory question.
The decision did not amend the statute or establish a new rule about how every case under s 501 must be decided. It applied Direction No 41 to the evidence in this particular review. Its treatment of the five-year pre-offending residence period was consistent with the approach in Re Heyward: the relevant focus was the length of ordinary residence before criminal activity, and the Tribunal treated the period as neutral in this case [41]-[42]. The outcome was the setting aside of the particular cancellation decision.
Key passages with plain-English translation
At [17], the Tribunal said it could not “go behind the convictions” or make findings inconsistent with the essential facts underlying them. In plain English, Mr Puafisi’s explanations could be considered only within the limits imposed by the fact of the convictions and their essential basis. The Tribunal did not conduct a retrial of the criminal cases.
At [19], the Tribunal identified the factors relevant to the risk of repetition: recent convictions, rehabilitation or prospects of rehabilitation, and whether judicial orders had been breached. This shows that its risk assessment was not limited to counting convictions. It considered both the history of offending and evidence about the possibility of change.
At [38], the Tribunal stated that Mr Puafisi’s overall risk of reoffending was low and that he posed a minimal risk for community protection. This was the Tribunal’s assessment of the evidence in the review, including the psychologist’s evidence, his alcohol use, his changed living circumstances and the nature of the historical offending.
At [42], the Tribunal said the five years before the first listed criminal conduct should not be treated as favourable, but also should not be treated as negative. Put simply, the period did not add weight on either side of the balance.
At [51], it found that Tallara’s best interests favoured her father remaining in Australia. The Tribunal relied on the closeness of their relationship, her distress at the prospect of removal and her family circumstances.
At [66]-[67], the Tribunal weighed the primary and other considerations and decided to exercise the discretion not to cancel. The operative disposition was that the decision under review was set aside. The judgment does not state that the character test was passed; it expressly records that failure of the test was undisputed.
What fact patterns trigger this precedent
The decision is most directly relevant as an example of merits review where a person fails the character test but the decision-maker must still exercise a cancellation discretion under s 501(2) and apply Direction No 41. The facts included lengthy residence in Australia, a substantial criminal record, serious violent and sexually based offences, evidence about alcohol abuse, an expert assessment of reoffending risk, a minor child in Australia, and significant family relationships.
It is particularly useful for the way the Tribunal organised the inquiry. It separately assessed the seriousness of the offending and the risk of repetition, rather than treating the conviction record alone as a complete answer to community protection. It also distinguished the length of total residence from the period of residence before criminal conduct, and treated the latter as neutral on these facts.
The decision also illustrates the relevance of evidence about a child’s circumstances, the relationship with the parent, the impact of separation and the child’s other caregiving arrangements. Here, Tallara’s removal from her mother’s care and her ongoing contact with her father featured in the Tribunal’s assessment.
The limits are important. The Tribunal accepted that the offences were serious and did not go behind convictions. Its low-risk assessment depended on the evidence it heard, including Mr Puafisi’s changed circumstances and the psychologist’s qualifications and limitations. The judgment does not establish that a stable relationship, reduced drinking, long residence or family hardship will outweigh serious offending in another matter.
How later courts have treated it
The supplied judgment does not discuss any later judicial treatment of Puafisi. It therefore does not establish whether later courts or tribunals followed, distinguished, approved or criticised its reasoning. No claims about subsequent treatment can be grounded in this judgment alone.
The authorities it does cite are Minister for Immigration and Multicultural Affairs v SRT and Re Heyward. The Tribunal applied SRT for the proposition that it could not go behind convictions or make findings inconsistent with their essential facts [17]. It relied on Re Heyward for the relevance of the period of residence before criminal activity, rather than total time in Australia [41]-[42]. Those are the relationships described by the judgment itself; they do not demonstrate how Puafisi was treated later.
For professional research purposes, the decision should be read as a Tribunal merits-review determination applying the Direction then in force to particular evidence. The text supplied does not establish its subsequent citation history, current statutory setting or later interpretation of Direction No 41. Any account of those matters would need sources beyond this judgment.
Still-open questions
The judgment leaves several questions unanswered within its own reasoning. It does not establish a general method for translating a psychologist’s estimated risk into the weight given to community protection. Mr Taylor’s assessment was described in the evidence, but the Tribunal’s ultimate low-risk finding also relied on contextual matters such as age and stability. The judgment does not provide a formula for reconciling those kinds of evidence in other cases.
Nor does it set a general threshold for how much pre-offending residence is enough to attract favourable weight. It decides only that Mr Puafisi’s five years were neutral, while referring to Re Heyward and its treatment of five years in that case. The result illustrates application, not a universal numerical rule.
The judgment also does not resolve how the weight of serious offences should be balanced against a favourable risk assessment in materially different circumstances. It acknowledged the seriousness of several offences, including the aggravated indecent assault, but reached its conclusion on the combined facts before it. The outcome cannot be separated from the Tribunal’s assessments of risk, family circumstances and the child’s interests.
Finally, the source contains no later cases, amendments or current policy materials. It cannot answer how the statutory provisions or ministerial directions may have changed after September 2009, or how later authorities have construed them. Those are questions requiring separate, current legal sources.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (28 paragraphs)
[1]
Puafisi and Minister for Immigration and Citizenship [2009] AATA 689 (10 September 2009)
[2]
Puafisi and Minister for Immigration and Citizenship [2009] AATA 689 (10 September 2009)
IMMIGRATION - Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister's direction issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied - primary considerations - protection of the Australian community - not open to the Tribunal to engage in any enquiry which would impugn the sentence - risk of recidivism - offences committed in context of alcohol abuse - evidence of rehabilitation - length of time that a person has been ordinarily resident in Australia - best interests of the child - other considerations - family ties and the nature and extent of any relationship with the Australian community - decision under review set aside
Direction No 21 [superseded 15 June 2009 by Direction No 41]
[10]
Mr Puafisi applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel Mr Puafisi's visa on the ground that he did not pass the 'character test'.
[11]
Mr Puafisi was born in Tonga and is aged 55. He arrived in Australian on 24 January 1985, aged 30, on a three-month visitor visa, following his father who had come to Australia three months earlier. He attained permanent residency in 1994.
Mr Puafisi has no criminal history in Tonga but, between 1990 and 2007, he was convicted of a number of offences in Australia after, it appears, he developed a drinking problem:
(a) 30/03/1990, malicious damage - fined and ordered to pay compensation;
(b) 14/04/1994, assault occasioning actual bodily harm (ABH) - good behaviour bond;
(c) 17/06/1994, common assault and breach of domestic violence order - fined and sentenced to three months' periodic detention;
(d) 01/08/1996, malicious damage - good behaviour bond and ordered to pay compensation;
(e) 11/02/1998, ABH and contravene apprehended violence order (AVO) - good behaviour bond;
(f) 12/02/1998, common assault;
(g) 04/05/1999, indecent language - fined;
(h) 20/10/2000, common assault - good behaviour bond, fined;
(i) 17/12/2001, contravene AVO, resist officer in the execution of his duty - fined;
(k) 01/04/2004, failure to quit premises, destroy or damage property - fined, good behaviour bond;
(l) 22/07/2005, ABH, common assault, destroy or damage property - six months' imprisonment, commencing 22/07/2005;
(m) 22/08/2005, common assault, use of offensive weapon with intent to commit indictable offence - eight months' imprisonment, commencing 22/10/2005 (six months non-parole); and
(n) 08/05/2007, goods in personal custody suspected of being stolen - fined, good behaviour bond.
After Mr Puafisi's 2003 conviction, cancellation of his visa was considered but, on 15 February 2005, a delegate of the Minister decided not to cancel his visa but to issue instead a formal warning that conviction of any further offences would result in the cancellation of his visa being reconsidered.
On 13 February 2007, the Department notified Mr Puafisi of its intention to cancel his visa and a delegate of the Minister subsequently cancelled his visa on 30 June 2007. Mr Puafisi applied to the Tribunal for a review and, on 3 October 2007, the Tribunal affirmed the decision. Mr Puafisi's appeal to the Full Federal Court was dismissed on 27 February 2008.
[12]
Section 501(2) of the Act provides that the Minister may cancel a visa if "the Minister reasonably suspects that the person does not pass the character test". Section 501(6) provides that a person does not pass the character test if the person has a 'substantial criminal record'. 'Substantial criminal record' is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
On 15 May 2003, Mr Puafisi was sentenced to a term of imprisonment of 12 months. On 22 July 2005, he was sentenced to further terms of six and eight months. There is no dispute that he does not pass the character test.
It was therefore open to the Minister to cancel Mr Puafisi's visa. In exercising this discretion, the decision-maker must apply Ministerial Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). This superseded Direction No 21 and came into effect on 15 June 2009. Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primaryconsiderations in Direction No 41 are set out in paragraph 10(1):
[13]
The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (theprimary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
[14]
These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of otherconsiderations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(1), they should be given less weight than the primaryconsiderations. Those otherconsiderations are discussed below.
[15]
The relevant primary considerations in Mr Puafisi's case are the protection of the Australian community, the length of time he has been ordinarily resident in Australia, and the best interests of his children.
[16]
Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
With regard to the seriousness of Mr Puafisi's conduct, I note that paragraph 10.1.1(1) states that "[c]rimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community". Sexually-based offences and assault are specifically mentioned as examples of offences and conduct that are considered serious (paragraph 10.1.1(2)(c) and (d)).
As stated above, Mr Puafisi has a number of convictions for assault and his most serious offence is that of aggravated indecent assault, the victim being his 17-year-old step-daughter, in respect of which he was sentenced to 12 months' imprisonment. While Mr Puafisi has contended that he did not commit the offences for which he was convicted, the Tribunal cannot go behind the convictions, nor make findings inconsistent with the essential facts underlying the convictions: Minister for Immigration and Multicultural Affairs v SRT(1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197.
Mr Puafisi's convictions range over a period of 17 years, from 1990 to 2007. I find they occurred in the course of what appears to have been a sometimes tempestuous de facto relationship with Mabel Henry and were fuelled by alcohol, which was abused by both Ms Henry and Mr Puafisi.
The Tribunal must also consider the risk that the conduct may be repeated. A recent history of convictions is considered to indicate an increased risk of re-offending. Evidence of any rehabilitation or prospect of rehabilitation and evidence that the person has breached judicial orders must be considered.
[17]
Mr Puafisi gave evidence that he stayed with Mabel Henry because of their children: she drank all the time and was liable to go out and leave them. Latterly, he was particularly concerned for his younger daughter Tallara, who was born in 1995 and is now aged 14. His older daughter Lelaine, who was born in 1991 and is now aged 18, had for many years lived with Mr Puafisi's niece Theresa Taufa and her family, Ms Henry having driven through a red light when drunk with Lelaine, then aged three months, in the car. His niece took Lelaine to live with her. The Department of Community Services (DoCS) were not involved.
Mr Puafisi said Ms Henry sometimes started drinking - beer or wine - in the morning and only stopped when she went to bed at night. He sometimes drank with her when he got home from work because, if he did not do so, she was liable to go out and drink with other people, some of whom he did not know, and she might not come home for a day or two. Mr Puafisi said the offences for which he was convicted were committed when he was drunk. There were often problems when he drank with Ms Henry. He should have taken Tallara away earlier. He finally split up with Ms Henry in 2005 because of the drinking and fighting and his being arrested by the police and ending up in prison.
Mr Puafisi acknowledged that he was convicted of another offence in 2007 after he left Ms Henry. He had met up with his first cousin, Vakameilalo, whom he had not seen for some time, and they went to have a drink. Mr Puafisi was on his way home, crossing a park to collect some food, when some aborigines gave him a bag with four bottles of wine in it. While he was waiting to collect the food, he was stopped and searched by the police who found some sort of licence or "IT" in the bag, of which he had not been aware.
Mr Puafisi said he was already friends with Ms Merle Byrne at the time, but he was living separately in Housing Commission accommodation although they each spent time at the other's house. He did not move in with Ms Byrne until he was released from Villawood Immigration Detention Centre on 21 July 2008, by which time he had lost his Housing Commission accommodation. Mr Puafisi said when he moved in with Ms Byrne his life "changed a lot" and he was very happy. He did not have the problems he had before and did not worry about drinking. They would rarely drink at home and would go out about once a week to the Sports Club at Riverwood where he would have four or five schooners of beer.
[18]
Mr Taylor prepared a psychological report on Mr Puafisi dated 22 February 2009, and gave oral evidence at the hearing. Mr Taylor is a forensic psychologist who has extensive experience in undertaking psychological assessments in criminal-related matters.
Mr Taylor assessed Mr Puafisi as having "an above average predisposition to engage in alcohol abuse". If Mr Puafisi is around alcohol or those who are drinking alcohol, this is potentially a trigger. People with such a predisposition are not usually given to drink by themselves if there is no pattern of the person doing so. Mr Taylor said if Mr Puafisi has engaged in alcohol abuse, "he would have inadequate control over drive and impulse". Tests administered also indicate that Mr Puafisi has "mild anger pathology" so that "if he is intoxicated his controls would be debilitated and he would then express his anger in rather an impulsive manner". Mr Taylor said that if Mr Puafisi drinks alcohol, he has less control. Further, he has "an above average tolerance for legal violations", meaning that he does not consider minor criminal matters to be overly significant.
Mr Taylor said, in his opinion, Mr Puafisi has "a generally moderate risk of recidivism", which he equated to an approximately 20 percent chance of again committing an offence. In making this assessment, Mr Taylor did not take into account other facts such as age and circumstances, which may also affect the risk of recidivism. If a person's criminal conduct is not related to a pattern of anti-social behaviour when young, especially in the teenage years, then there is a greater likelihood of the person not re-offending as he/she gets older. Research indicates that "there is likely to be more stability in functioning in people as they grow older, particularly from the 4th decade of life onwards". Further, the fact that a person is in a stable relationship, is in a crime-free environment and with stable employment, tends to substantially reduce the likelihood of a person re-offending.
[19]
Mr Karp, for Mr Puafisi, noted that Mr Puafisi had no convictions in the first 36 years of his life and his problems only started when he commenced a relationship with Ms Henry, who appears to have often been regularly intoxicated. All the offences for which Mr Puafisi has convictions occurred during this period except for that in 2007, Mr Puafisi having finally separated from Ms Henry in 2005. Moreover, all the offences took place when Mr Puafisi was intoxicated.
Mr Karp said that since forming a relationship with Ms Byrne in 2007, Mr Puafisi has lived a quiet, industrious life, as her evidence and that of an undated letter of a friend of Ms Byrne's, Diane Jones, indicates. There is also the evidence of Bob Hansberry, the Managing Director of ABC Castings Pty Ltd, Mr Puafisi's former employer, that he "would have no hesitation in re-employing" Mr Puafisi if there was work for him. Mr Puafisi has no criminal convictions since he commenced living with Ms Byrne.
Ms Byrne gave evidence of how happy she is when with Mr Puafisi and that they enjoy one another's company. She said they go out once a week to the local club at Riverwood when the meat raffle is on. She does not count how many drinks Mr Puafisi has - maybe five. She has never seen him out of control and trusts him to control his drinking when she is not around. Ms Byrne described Mr Puafisi as "a kind and gentle man who would do anything for you" and whom she has never seen to be aggressive.
Ms Quinn, for the Minister, noted Mr Karp had conceded that some of the offences committed by Mr Puafisi are objectively serious. The offences occurred while Mr Puafisi was intoxicated, many of them in a family context, and the level of violence involved appears to have increased through the 1990s. There was a persistent pattern of behaviour over a long period and it should be noted that the behaviour leading to the last conviction in 2007 occurred after Mr Puafisi's relationship with Ms Henry had ended.
Ms Quinn submitted that there is a significant risk of Mr Puafisi re-offending. Mr Puafisi's evidence in these proceedings about the offences of which he was convicted, confirming his evidence in the 2007 Tribunal proceedings, indicates that he has not taken responsibility for his actions and seeks to minimise his culpability. So, for example, Mr Puafisi said of his 1994 conviction for assault on Justin Henry that he (Mr Puafisi) was acting in self-defence, and of his 1996 conviction for malicious damage that it was Ms Henry's youngest son who broke the windows in question. In relation to his conviction for assault on 20 October 2000, Mr Puafisi denied assaulting Ms Henry and in relation to his conviction for indecent assault on his step-daughter on 15 May 2003, he denied the incident took place. Ms Quinn said these denials should be taken into account in determining the weight that should be attributed to Mr Taylor's psychological report.
[20]
...
Once in a crisis situation, like being arrested, Mr Puafisi appears to be able to control his alcohol intake either by complete abstinence or controlled drinking, however once the crises are over he returns to his usual drinking patterns and alcohol abuse.
...
[21]
Ms Quinn submitted that it was not credible to think that Ms Byrne can totally control Mr Puafisi's drinking. There is a real risk of Mr Puafisi again becoming intoxicated and re-offending, and the protection of the Australian community should weigh heavily in favour of the cancellation of Mr Puafisi's visa.
In my view, there is no question about the serious nature of a number of the offences for which Mr Puafisi has been convicted. However, it is clear that with the exception of the 2007 conviction, all took place in the context of Mr Puafisi's sometimes tempestuous relationship with Ms Henry. Moreover, in the case of all the offences, Mr Puafisi was intoxicated.
After Mr Puafisi's release from Villawood on 21 July 2008, he moved in with Ms Byrne with whom he had previously formed a strong friendship. The evidence indicates they have a close, happy relationship and that Ms Byrne has had a strong stabilising influence on Mr Puafisi. He has significantly cut down on his drinking and the likelihood of his again abusing alcohol appears to be minimal. Moreover, Mr Taylor's psychological assessment, in which he states his opinion that Mr Puafisi has "a generally low-moderate risk of recidivism", did not take account of factors such as age and the stability of the person's situation. Where these factors are relevant considerations, the likelihood of a person re-offending is substantially reduced.
On the evidence before me, my conclusion is that the overall risk of Mr Puafisi re-offending is low, and that Mr Puafisi poses a minimal risk in terms of the protection of the Australian community.
[22]
Mr Puafisi has been an Australian resident since January 1985. Paragraph 10.3(1) of Direction No 41 states that "more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character". In this instance, there was a period of five years before Mr Puafisi engaged in the criminal conduct in respect of which he was convicted on 30 March 1990.
Ms Quinn notes that this marked the beginning of a 17-year period of offending, and the relatively short period of non-offending when compared with the much longer period of offending should weigh against Mr Puafisi. Mr Karp submitted that a shorter period of non-offending residence should be regarded as a neutral factor and should not weigh against a person. The clause only states that more favourable consideration is to be given to a longer period of non-offending.
I note Deputy President Walker's decision in Re Heyward and Minister for Immigration and Citizenship[2009] AATA 536, when, at [307], he said, that "It is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant's character". In that case, DP Walker found that while five years was a significant period, it was insufficient to merit great weight under this consideration, especially as Mr Heyward had spent over a quarter of his time in Australia in prison.
In my view, Mr Karp's submission is consistent with DP Walker's decision - it is a matter of not treating this as a consideration favourable to Mr Puafisi, rather than treating it as a negative consideration.
[23]
Direction No 41, paragraph 10.4.1(4) states: "Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents".
The Direction sets out a number of factors to be considered in ascertaining the best interest of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person's prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
Mr Puafisi has one child in Australia - Tallara, who is aged 14. He has one other child in Australia - Lelaine, who is aged 18, whose interests may, therefore, only be considered as part of the other considerations. Tallara gave evidence by conference telephone at the hearing, and also provided a statement dated 24 August 2009. She is currently living with her half-sister in Brisbane. Tallara was removed from the care of her mother, Ms Henry, in early December 2008 by DoCS, relying on a report by a child protection caseworker detailing a long history of reports concerning Ms Henry, and referring in particular to her alcohol abuse. The caseworker expressed the opinion that Tallara was "at immediate risk of serious harm at the time of removal" and in need of care and protection.
Tallara was initially placed with her father's niece, Theresa Taufa and her family, with whom Tallara's sister, Lelaine, lives. Tallara said that in about April 2009, she moved to Brisbane to live with her half-sister and her family, where she wants to remain.
Tallara said she is angry that her father is having to deal with these immigration issues again and it is causing considerable stress to her family. She is very sad that her father is in detention and she does not want him to be sent back to Tonga. She said her father has always been there for her when she needed him. When she was in primary school and he was living with her mother, he used to take her to school in the mornings and collect her from school in the afternoons, and help with her homework. When her mother was in hospital, which was "a lot of times", he looked after her, including doing the cooking. He also provided her mother with financial support.
[24]
As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations. Relevant considerations in Mr Puafisi's case are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his links with Tonga, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
Mr Puafisi was born in Tonga where he lived until 1985 when he came to Australia at the age of 31. He is now aged 55 and has never returned to Tonga. Mr Puafisi's evidence is that his last contact with his family in Tonga was with his youngest son in 2007. Mr Puafisi has three children in Tonga but appears to have virtually no contact with them. He said he does not know where any of them are or what they do. Two of his brothers are in Australia with their families, his sister moved to America, and one of his brothers in Tonga passed away two years ago. Mr Puafisi's mother died when he was aged about five and he was brought up by his father, whom Mr Puafisi followed to Australia in 1985. His father died in Australia in 2000.
Mr Puafisi said that if he had to return to Tonga he would have nowhere to live or grow food, and he does not have any money to support himself. The family home now belongs to one of his older brothers or the brother's son.
With regard to Mr Puafisi's family and relationships in Australia, of significance are his relationships with his older daughter Lelaine and his partner Merle Byrne. Lelaine is now aged 18. She was removed from her mother's care at a very young age and lives in Sydney with Mr Puafisi's niece Theresa Taufa and her family. Mr Puafisi said he has a good relationship with Lelaine. He sees her at family gatherings, for example at his brother's place, and they go out together on Father's Day. Since being again detained in Villawood, he has not seen Lelaine but has tried to phone her four or five times a week, although has not been able to get through.
Lelaine gave oral evidence at the hearing. She is studying a Tertiary Preparation Course in order to undertake an Information Technology course at university. She said she cares for and loves her father and does not want him to leave Australia. Her father means a lot to her and she would be "devastated" if he was sent back to Tonga because he would be so far away. Lelaine has been to Tonga a few times but would not want to stay there long because Australia is better.
[25]
Weighing up first the primary considerations, to which I am required to give greater weight, as I have said above, in my view Mr Puafisi poses a minimal risk in terms of the protection of the Australian community. The length of time he has ordinarily been resident in Australia is a neutral factor, while the best interests of his child, Tallara, favour Mr Puafisi remaining in Australia. In terms of the relevant other considerations, to which I am required to give less weight, in my view, his family ties, in particular the interests of Lelaine and Ms Byrne, also favour Mr Puafisi remaining in Australia, as do his age and the hardship that he would suffer if he is returned to Tonga. However, I note that on 15 February 2005, Mr Puafisi received a formal warning that cancellation of his visa would be reconsidered if he re-offended.
Having weighed up these considerations, I am satisfied that the discretion in s 501(2) of the Act not to cancel Mr Puafisi's visa should be exercised in his favour.
[26]
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
[27]
Applicant representative: Ms A Toliopoulos, NSW Legal Aid Commission
[28]
Respondent representative: Ms T Quinn, DLA Phillips Fox
Legislation Cited (1)
Act 1958(Cth)
Cases Cited (1)
(1999) 91 FCR 234
AI Analysis
Outcomeappellant
Disposition:
The decision under review was set aside.
On 17 July 2008, the Full Federal Court made a decision in an unrelated matter finding that s 501 of the Migration Act 1958 (Cth) (the Act) could not be used to cancel a transitional (permanent) visa. As a result, the Department took the view that the decision in Mr Puafisi's case contained a jurisdictional error and, on 21 July 2008, Mr Puafisi was released from immigration detention. On 19 September 2008, the Act was amended by the insertion of s 501HA, thereby enabling the cancellation of a visa of the same class as that held by Mr Puafisi under s 501.
By letter dated 21 October 2008, the Department again notified Mr Puafisi of its intention to cancel his visa and, on 30 June 2007, a delegate of the Minister cancelled his visa and Mr Puafisi was taken into immigration detention at Villawood. On 3 July 2009, Mr Puafisi applied to the Tribunal for a review of this decision.
In cross-examination, Ms Quinn asked Mr Puafisi about a number of the offences of which he was convicted. He confirmed oral evidence he gave at the previous Tribunal proceedings in September 2007:
(a) conviction of 14/04/1994 - he was accused of assaulting Ms Henry's son, Justin. Mr Puafisi said Justin had punched his mother and when Mr Puafisi told him he should not do this, Justin came at him with a piece of wood and Mr Puafisi hit him in self-defence;
(b) conviction of 01/08/1996 - it was Ms Henry's son who threw a stone and broke the window which was the subject of the malicious damage charge;
(c) conviction of 11/02/1998 - Mr Puafisi was convicted of assaulting Ms Henry at a Kings Cross club. Mr Puafisi said he could not remember what happened;
(d) conviction of 20/10/2000 - the police alleged that when walking down Marrickville Road in the early hours of the morning, Mr Puafisi punched Ms Henry, knocking her to the ground, where he kicked her. Mr Puafisi again denied this and said that the only incident he recalls of this kind was when Ms Henry scratched his face and he pushed her way;
(e) conviction of 15/05/2003 - for aggravated indecent assault in relation to an incident in July 2002. Mr Puafisi repeated that he had not touched Ms Henry's 17-year-old daughter Roxanne. He and Ms Henry were in bed and when he woke, he found Roxanne lying on the other side of Ms Henry, next to the wall. He pleaded guilty to this offence to secure his release from prison;
(f) conviction of 01/04/2004 - in respect of an incident at an hotel before the July 2002 incident. Mr Puafisi said he was told to leave the premises after the police arrived, and denied he harassed a female hotel patron as was alleged;
(g) conviction of 22/07/2005 - Mr Puafisi repeated his previously given oral evidence. He said he lifted Vicki Chand to stop her going into the room occupied by his daughter. When the police arrived, Ms Henry said Ms Chand was having a fit; and
(h) conviction of 22/08/2005 - Mr Puafisi said the victim started the fight. Mr Puafisi pleaded guilty because the matter was adjourned so many times.
The Tribunal asked Mr Puafisi how he felt about his offences. He said that he feels sad. He feels regret and sorrow because, if he had not been drinking, the problems would not have occurred. He apologises to anyone who has been affected by his behaviour in the past. He now wants to reduce his alcohol intake and not re-offend. He is very happy living with Ms Byrne and does not want any repetition of what happened before.
Ms Quinn said it is not the first time Mr Puafisi has expressed remorse about his conduct and, in particular, about the problems caused by his drinking. The pre-sentence report prepared for the Downing Centre Local Court dated 8 May 2007 states:
After Mr Puafisi was released from Villawood in July 2008, he used to visit her at Theresa's house. Tallara said that for the past three or four months, he has phoned her daily and asked her about her day, how she went at school and what she is doing. Although she wants to remain living with her half-sister, Tallara wants to see her father as much as possible and maintain their regular phone contact. She said she hardly ever sees her mother but she misses her.
Tallara said she has been to Tonga once and it was "alright". She cannot speak Tongan and she does not want to live there.
Mr Karp said Tallara obviously has a close relationship with her father, and removing him from the country would be very detrimental for her. Ms Quinn submitted that Tallara's best interests would not be affected significantly by her father being returned to Tonga because it is likely that Tallara will remain living in Queensland with her half-sister and, if Mr Puafisi were to be living in Sydney, this would still be a long distance relationship, albeit that communications with Tonga are likely to be more difficult.
In my view, Tallara's evidence indicates that she would be very distressed by her father being removed from Australia. It is clear she has a close relationship with Mr Puafisi and, of her two parents, it is her ongoing contact and communication with him that is most important. Noting that Tallara was removed from her mother's care and the reasons for that removal, it seems likely that the removal of her father from Australia would have a significant adverse effect on Tallara. I am therefore satisfied that it is in Tallara's best interests for Mr Puafisi to remain in Australia.
Lelaine said she has almost no contact with her mother, whom she last saw last year some time, when they talked for about 10 minutes.
Lelaine said that after Mr Puafisi was released from Villawood in July 2008, he came to visit her about three times at Theresa's house, and would spend the day with her. She said she enjoys being with him. She would also speak to him regularly on the phone - he would phone her once or twice a week. She thought Mr Puafisi had not been able to phone her lately from Villawood because she has her phone switched off most of the time. Lelaine said she gets on with Ms Byrne and is comfortable about visiting Mr Puafisi at her house.
Ms Byrne provided a statement dated 24 August 2009 and gave evidence at the hearing. She is aged 66, has three adult children and five grandchildren, and lives in Riverwood. Ms Byrne said her husband died in 2003 of prostate cancer, after she had nursed him for four years at home. She was very depressed after he died, it took her a long while to recover, and she never thought she would meet another man who she would care for and who would care for her. Ms Byrne first met Mr Puafisi at the Riverwood Sports Club in November 2006. Thereafter, they began seeing each other regularly and visiting each other at their houses. When Mr Puafisi was released from Villawood in July 2008, his having lost his Housing Commission accommodation, he moved in with her.
Ms Byrne said she is very happy when she is with Mr Puafisi. They enjoy one another's company. He is a very kind and gentle man who would do anything for you. He does all her home maintenance jobs and takes this load from her shoulders. Ms Byrne knows everything about Mr Puafisi's criminal record and is happy to have him as her partner. She does not see her children very often, but Mr Puafisi has met her son with whom he gets on well. Ms Byrne said she does not interfere with Mr Puafisi's family, noting that he loves his children dearly.
Ms Byrne said they lead a quiet life together, including going to the Riverwood Sports Club once a week. She has never seen Mr Puafisi drunk. If he is allowed to remain in Australia, their future "will be happy and wonderful". She would be "sad, lost, alone and devastated if he is not allowed to stay" in Australia.
Mr Karp said Lelaine's evidence indicates that she has a primary bond with her father and would be emotionally affected if her father were sent back to Tonga. Mr Karp also pointed to letters, provided in support of Mr Puafisi, from Mr Puafisi's older brother in Australia, Pahulu Puafisi, and his daughters Keasi Pongi and Anaeimi Puafisi. Mr Karp said a major consideration is the effect that removing Mr Puafisi from Australia would have on Ms Byrne, who has "stuck by him" through two periods of detention in Villawood, including writing letters of support for him to Government Ministers and officials. Her evidence indicates she has a deep emotional attachment to Mr Puafisi and would be devastated if he was sent back to Tonga, condemning her to a "lonely and desolate old age".
Mr Karp said sending Mr Puafisi back to Tonga would be sending him back to a place he left 24 years ago, where he has no home or means of support, and where he last had contact with family members in 2007.
Ms Quinn noted that although Lelaine might be emotionally devastated by her father's being returned to Tonga, it would not otherwise change her circumstances. Ms Quinn acknowledged that Mr Puafisi's removal from Australia might cause significant hardship to Ms Byrne. With regard to Mr Puafisi, although his family connections in Tonga appear to be tenuous, he lived there until the age of 30, he speaks Tongan and could re-establish his connections. He may suffer hardship, but not as great as that which might arise in different circumstances. Ms Quinn submitted that these other considerations do not outweigh the primary consideration of the protection of the Australian community.
In my view, the effect of Mr Puafisi's removal on Lelaine and Ms Byrne are significant otherconsiderations. I also accept that his being sent back to Tonga would cause significant hardship to Mr Puafisi by separating him from his family in Australia, including Ms Byrne.