1. Dr Bruce Westmore, forensic psychiatrist, examined the applicant at Silverwater on 18 July 2007 (Exhibit R1).
2. In discussing the assault on Mr Stokes on 23 March 2007, the applicant had said to Dr Westmore, "I heard voices telling me to hit him. As I hit him the other two robbed him. It wasn't meant to be robbery either .... I don't know why I hit him, I heard voices telling me to. I have been treated for schizophrenia in the mental health unit" (Exhibit R1, p2).
3. Dr Westmore pursued the subject of auditory hallucinations:

I asked him more about the voices and he said they commenced when he was fifteen or sixteen, he thought the voices were male and internal. When asked what the voices said he stated, "You don't want to be here, I'm not going to have salvation". The voices talked directly to him, he was uncertain whether he had audible thoughts. He told me the television and radio also gave him messages which were based on Christianity. He said the voices stopped two months after he was placed on the antipsychotic medication, Zyprexa and the messages from the television and radio also resolved.

1. It is clear from his report that Dr Westmore was of the opinion that the applicant was suffering from a psychotic illness, either a drug-induced psychosis or a primary process schizophrenic illness (Exhibit R1, pp5-7). He also thought that the applicant might have had a mental illness defence to the assault occasioning actual bodily harm against Mr Stokes: "If the victim was not laughing at Mr Lavea then he may have a mental illness defence to that particular charge", he wrote (Exhibit R1, p7).
2. He noted that the applicant did not suffer from mental retardation but was on anti-psychotic medication for a mental illness that had resulted in his acute symptoms going into remission. He would need continuing psychiatric care and medication for at least another 12 to 18 months. While mentally ill and when intoxicated he could potentially represent a danger to the community (Exhibit R1, p7).
3. In his oral evidence Mr W John Taylor, clinical forensic psychologist, adopted his report of 21 September 2008 (Exhibit A8). The document canvasses the applicant's background and notes his apparently successful treatment with anti-psychotic drugs. The applicant told him that he had been hearing voices at the time of the assault on Mr Stokes and said the victim had not done or said anything to provoke him. He believed that if he refrained from using drugs or abusing alcohol he would not commit any further criminal offences.
4. He expressed what appeared to be quite genuine regret and remorse for his offending behaviour and appeared to accept responsibility for his offences in the past.
5. Mr Taylor assessed the applicant as having a moderate risk of recidivism on the basis of actuarial analyses and clinical judgment. That depended, however, only on static or historical factors and did not include dynamic factors such as response to treatment or rehabilitation. The applicant reported being motivated for rehabilitation and had attended relevant programs in jail: "If Mr Lavea is able to maintain his motivation to resolve his substance abuse then his likelihood of recidivism would be substantially reduced and he would be considered to have much better prospects for rehabilitation" (Exhibit A8, p9).
6. The report concluded (Exhibit A8, p10):

Based on information which has been available to me at the time of preparing this report I have reached the view that Mr Lavea has demonstrated significant change since his conviction for the offences which have given rise to the decision to cancel his visa. He now is actively participating in his rehabilitation and if he is able to continue to do this then his future will be much more positive in terms of him being able to live a more productive and stable lifestyle. His long-term rehabilitation is likely to be assisted by the support of his uncle who will be able to find employment for him in the mines in Western Australia and with whom he will be able to live.

1. In cross-examination Mr Taylor conceded that some subjects try to misrepresent their history and overstate their prospects of rehabilitation, but noted that the system of evaluation he used provides a number of traps that a person could fall into if attempting to deceive. He had obtained no indication of any such attempts on the part of the applicant.
2. If the applicant refrained from using drugs, while one could not guarantee that he would not re-offend because there can never be a zero risk of recidivism and psychological conclusions can only be opinions and not facts, his chances would be better. Drugs were the motivation for his wrongdoing, even though the breakdown of a relationship was also involved. Drugs affect and impair people's functioning in various ways.
3. The availability of a supporting environment would be a major factor in helping the applicant to maintain his motivation to avoid relapsing into drug use and criminal behaviour. There were positive signs in his present situation.
4. If he were to remain in Sydney, Mr Taylor considered that he would be a good candidate to join a program conducted by Mr Taylor that aims at restructuring offenders' motivation in order to help them to maintain a positive motivation. Those who complete the program have a recidivism rate of only nine percent as against the usual 40 percent. The program would not, however, be available to the applicant if he were to move to Western Australia.

1. In this case the applicant concedes that he does not pass the character test because of his "substantial criminal record" within s 501(7) (Exhibit A10, para 12).
2. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant's visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

1. Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

1. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
2. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, "aims to deter other people from committing the same or a similar offence".

1. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. In this case, the applicant was convicted of aggravated robbery and inflicting actual bodily harm on 30 November 2007 and sentenced to three years and two months' imprisonment. On that occasion the applicant asked the sentencing judge to take into account a charge of being an accessory after the fact to the armed robbery carried out at the BP service station, Normanhurst, on 2 September 2006.
2. In relation to the latter offence, Knox J noted that the facts "indicate a very low level of criminality" (G p54). As to the robbery offence, however, his Honour noted that it "did involve a violent assault, and on a victim who suffered a number of injuries ... and there was an eruption of mindless violence which is just reprehensible" (G p67).
3. His Honour also considered it relevant that the offence, together with the aggravated breaking and entering in company charge dealt with in conjunction with it, occurred while the offender was on conditional liberty. The second offence was committed within eight hours of the first and his Honour considered that the two offences were "interconnected and part of a crime spree whereby the offender, and those with whom he was mixing, had abandoned any kind of self-control" (G p68).
4. The applicant was convicted of his first offence 18 months after he began residing in Australia, and thereafter was convicted of over 17 offences (some relatively minor) in under two years.
5. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant's entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
6. The applicant's past drug usage cannot be treated as a mitigating factor in assessing the seriousness of his conduct (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 per Spiegelman CJ). Indeed, the tribunal has taken the view that when the use of drugs leads to the commission of other crimes, the community has all the more need to be protected (Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at para 34).
7. On the other hand, it appears that during the relevant period the applicant may have been suffering from a psychotic mental illness, schizophrenia or a drug-induced psychosis. He says that he was assessed in about April 2007 by a psychiatrist named Dr Lee who diagnosed him with a psychotic disorder and transferred him to the Silverwater mental health unit, where he received treatment and medication. The treatment was apparently successful and after he was transferred to the John Moroney Correctional Complex the medication was terminated after a two-week trial. Since then he has felt normal and is free of psychotic symptoms. He no longer takes any medication.
8. The respondent submitted that there was no documentary evidence of a diagnosis of a psychotic disorder, but Dr Westmore was plainly of the view that he was so afflicted and in fact thought the applicant might have a mental illness defence to his most serious charge. Mr Taylor noted that the applicant had been on anti-psychotic medication for about six months and had not suffered any recurrence of his symptoms.
9. In view of those opinions, and of the undisputed fact that the applicant was treated over several months with anti-psychotic medication in the Silverwater mental health unit, it is reasonable to conclude that such a diagnosis was made at some stage, possibly by Dr Lee. That conclusion is not inconsistent with Knox J's sentencing remarks (G p58), in which his Honour noted Dr Westmore's observation that there was no definite diagnosis of the applicant but accepted that he may have been suffering from an acute psychotic illness that had now stabilised. The applicant was legally represented at the sentencing hearing, and as the applicant pleaded guilty and raised no mental illness defence, his Honour was not required to make a finding on whether such a defence might have been available.
10. While the applicant's record must be regarded as very serious, there is a reasonable likelihood that at least part of it was significantly contributed to by the acute mental illness from which he was suffering and which now appears to be in remission.
11. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, "Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending" (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
12. The applicant has accumulated multiple criminal convictions of a serious nature over a short period. He has not availed himself of the opportunities offered to him by way of lenient treatment and has re-offended while on conditional liberty. The evidence from the psychiatrist and the psychologist identifies favourable signs in the applicant's condition and attitudes, but they are only one factor to be considered in the tribunal's evaluation of recidivism risk.
13. On the other hand, his remorse and contrition for his crimes appears to be genuine and his law-breaking conduct out of character with his prior observed behaviour and disposition, as well as with his upbringing.
14. He has a firm offer of employment with the mining company in Western Australia where his uncle John Hewer is employed. That company has an established practice of testing its employees for drugs and alcohol to ensure that they do not attempt to work while under their influence.
15. Given present economic uncertainties, it might not be possible to predict whether that offer, genuine though it concededly is, will still be available at the time of the applicant's planned release. Even so, he also has credible offers of employment in and around Sydney in the event that he should remain in New South Wales.
16. Importantly, he appears to have particularly strong family support structures on which to rely. He has offers of accommodation in stable environments in the homes of family members. His relationship with his mother is now very close and she appears to be a capable and determined woman who will do everything she can to prevent him from relapsing. He is still young enough for her to have some prospects of influencing him.
17. He has abstained from drugs during his present period of incarceration (unfortunately, drugs appear to be available in the prison through visits and other means), and while his resolution has not been put to the test in the wider community, he has undertaken relevant courses, is enrolled for two more and attends Narcotics Anonymous regularly. If he continues to live in Sydney he will be accepted into Mr Taylor's program, which has had marked success in maintaining positive motivation among prior offenders.
18. He has a long-term commitment to his Christian faith, and an assurance of support from Pastor Campos and his church. While the tribunal could not favour an applicant on the ground of being a practising Christian or otherwise religiously observant, the evidence shows that in the past Pastor Campos's church and influence have exerted a positive influence on the applicant's behaviour.
19. Finally, the success of his treatment for a psychotic mental illness should also help him to avoid relapsing into criminal conduct. In my view, the applicant's overall risk of recidivism is low.
20. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
21. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
22. As Callinan J observed in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 659, "Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort".
23. In my view visa cancellation in this case would have some general deterrent effect.

1. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal ... may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

1. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many historical, economic and other reasons for that view: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
2. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
3. Callinan J added that entering aliens are taken to know and accept "as a term of admission" that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
4. The community would be justified in having higher than usual expectation of New Zealand citizens, who are eligible as a matter of course for special visas unavailable to other non-citizens and which permit them to remain in Australian permanently: s 33 of the Act; Migration Regulations 1994, Schedule 1, clause 1219; Schedule 2, clause 444.
5. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
6. Normally the community would expect that the visa of a person who accumulated such a serious criminal record over a short period of residence should be cancelled. In this case, however, I think that view would be moderated in the minds of many people by the part apparently played by his psychotic mental disorder in his criminal activity and by the successful treatment of that condition, coupled with the success he has had to date in overcoming his drug problem and the strongly supportive environment into which he would be received if he were permitted to remain in Australia.

1. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration". I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
2. The applicant has no children and did not claim that the interests of any child would be adversely affected if his visa were to be cancelled. The tribunal must nevertheless consider the interests of any minors who might have a close relationship with the applicant (Aporo v Minister for Immigration and Citizenship [2008] FCA 102).
3. Mrs Niumata has four children aged between 17 and 29, but they have never met the applicant. Mr Mafi has three children aged 16, 17 and 19. They have met the applicant and one daughter, Vi, became relatively friendly with him when she was aged about 16. There is no other evidence about Mrs Mafi's children's relationship with the applicant and no reason to conclude that it is close or that their best interests require that he remain in Australia.

1. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
2. The applicant has no business or similar interests in Australia that would be jeopardised by visa cancellation. He is unmarried and not in a de facto relationship with an Australian citizen or permanent resident.
3. Visa cancellation could have an impact on the applicant's brother and their parents, who intend to move to Australia in any event. He has a number of aunts and uncles, as well as cousins, living in Australia. His parents, brother and some of his extended family, could suffer some emotional hardship if he were repatriated.
4. His grandparents live in New Zealand, as do seven of his siblings. He would have some family support if he were to be required to return there and has useful work skills. He would have access to Narcotics Anonymous and to welfare services similar to those available in Australia.
5. He has not previously been warned about the risk of visa cancellation. He has made significant progress towards rehabilitation and is genuinely contrite and regretful of his offences.
6. In particular, he has been successfully treated for the psychotic illness that played a significant part in his offending, especially in his most important offence. In Australia he would if released have an exceptionally strong and positive support network, comprising his parents, brother, extended family members, Mrs Mafi and Pastor Campos and his church. The applicant's involvement with and attachment to that church is not a tactical or purely recent move. He is young enough to make a complete break with his anti-social past and has the resources to do so.
7. On behalf of the minister, Ms Weston presented a well-prepared case and advanced telling arguments. Nevertheless, for the reasons given I think the case is an unusual one and that there is little risk to the community in giving the applicant an opportunity to show that his recovery from mental illness and his rehabilitation are complete. In my view the evidence favours the exercise of the discretion in the applicant's favour.
8. No doubt the respondent will make it absolutely clear to the applicant that any further wrongdoing will result in renewed consideration of visa cancellation. Any such review is inherently less likely to result in a favourable outcome for him.
9. The decision under review is set aside.

I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.