Botitu and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 108
•4 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1563
GENERAL ADMINISTRATIVE DIVISION ) Re Maciu Botitu Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date4 February 2005
PlaceSydney
Decision The decision under review should be affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION - visaex – on-shore visa application - cancellation of special category visa – character test – applicant fails the character test because of his substantial criminal record including armed robbery and aggravated robbery – examination of the applicant’s criminal conduct – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant – found that whilst the applicant did not use a weapon in the robbery offences his crimes are very serious, there is a significant risk of recidivism, the community would expect that the applicant’s visa be cancelled, and cancellation would send an undesirable message to non-citizens contemplating criminal conduct – found that the applicant could make a fresh start in New Zealand away from his criminal peer group – decision of the respondent affirmed.
Migration Act 1958 ss 499, 500, 501, 501G, 501(2), 501(6)(a), 501(6)(c)(i), 501(7)
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
4 February 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Maciu Botitu (also known as Matthew Botitu), who is aged 26 and a citizen of New Zealand, first came to Australia with his parents at the age of two. Between March 1984 and April 1996 he entered and departed Australia three times. He is the holder of a subclass 444 special category visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that the applicant did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his past and present criminal conduct and because he has a substantial criminal record in Australia, including robbery armed with an offensive weapon and robbery in company. The respondent therefore cancelled the applicant’s special category visa. This is the decision to be reviewed by the tribunal.
Background
3. Mr Botitu was born in New Zealand on 18 May 1978 and is aged 26. He is a citizen of New Zealand by birth. He first arrived in Australia with his parents at the age of two. At the age of four, he was left in Australia in the care of an uncle when his parents were deported back to New Zealand. His parents now reside in Fiji, being of Fijian ethnicity.
4. On 10 April 1996, Mr Botitu was granted a subclass 444 special category visa (G6).
5. Between 1992 and 1999, the applicant (under the name Matthew Botitu, Maciu being the Fijian spelling of Matthew) was convicted of a series of criminal and drug-related offences, including robbery armed with an offensive weapon, for which he was imprisoned on 10 September 1999. Amongst his convictions, he has the following:
Court date
Court
Offence
Sentence
16/10/1992
Lidcombe Childrens Court
Robbery
Released on probation 24 months GB attend school regularly.
5/8/1993
Lidcombe Childrens Court
Break enter and steal
NBC convicted s80AA warrant to issue for penalty.
10/9/93
Lidcombe Childrens Court
1. Larceny (2 counts)
2. BE & S
3. BE & S (s 80AA warrant)
4. Malicious damage (5 counts)
5. Stealing (4 counts)
1, 2, 3. On each charge control order 4 months.
4, 5. On each count, probation 6 months.
23/8/1994
Parramatta District Court
Robbery with striking and wounding
Recognisance s 588 self $300 GB 3 years supervision Juvenile Justice branch obey all reasonable directions re residence, associations, school attendance or employment, undergo treatment re alcohol.
29/10/1998
Burwood Local Court
Negligent driving
Sentenced to rising of the court.
19/11/1998
Bankstown Local Court
1.Possess implements to enter/drive conveyance
2. take and drive conveyance without consent of owner
3. goods in personal custody reasonably suspected of being stolen
4. negligent driving
5. driver never held licence – 1st offence within last 5 years
1 – 5. Warrant to issue.
11/11/1999
Bankstown Local Court
1. Unlicensed (first instance warrant)
2. take and drive conveyance (first instance warrant)
3. GIC (first instance warrant)
4. negligent driving (first instance warrant)
5. possession of implements (first instances warrant)
1 – 5. Convicted, s 80AA warrant to issue.
18/1/2000
Burwood Local Court
1. Drive under the influence of alcohol or drug
2. Unlicensed driver
1. Disqualified from driving for 2 years from 16 November 2000, 1 month gaol sentence.
2. Sentenced to rising of the court.
14/3/2000
Burwood Local Court
1. Robbery armed with offensive weapon
2. Robbery in company
1 – 2. Committed for sentence.
3/8/2000
Liverpool District Court
1. Robbery armed with offensive weapon
2. Robbery in company
1. Imprisonment 2 years and 6 months to commence on 10 September 1999 concluding 9 March 2002.
2. Imprisonment 2 years and 6 months to commence on 10 September 1999 and conclude 9 March 2002.
16/11/2000
Burwood Local Court
1. Drive whilst under the influence of alcohol or other drugs
2. Take and drive a conveyance (first instance warrant)
1. Imprisonment 1 month commencing 16 November 2000 and concluding 16 December 2000.
2. Imprisonment 1 month commencing 16 November 2000 and concluding 16 December 2000.
3/8/2000
Liverpool District Court
1. Robbery armed with offensive weapon (2 counts)
2. Robbery in company (bench warrant)
3. Aggravated robbery with wounding
Imprisonment 2 years and 6 months to commence 10 September 1999 concluding 9 March 2002.
2. Imprisonment 2 years and 6 months commencing 25 January 1999 and concluding 24 January 2001.
3. Imprisonment 8 years commencing 10 September 1999 and concluding 9 September 2007, non-parole period with conditions 4 years commencing 10 September 1999 concluding 9 September 2003 release subject to supervision including undertake drug and alcohol counselling including residential drug rehabilitation.
16/11/2000
Burwood Local Court
1.Possess implements to enter/drive conveyance
2. Take and drive conveyance without consent of owner
3. Self administer attempt/attempt self administer prohibited drug
4. Never licensed person drive vehicle on road
5. Goods in custody (first instance warrant)
6. Negligent driving (first instance warrant)
7. Possess car breaking implements (first instance warrant)
8.Unlicensed driver (first instance warrant)
1 – 8. Rising of the court.
6. Mr Botitu has also had the following convictions recorded against him while imprisoned:
Hearing date Offence (Sentence and Compensation)
30/7/1999 Fighting – 1 day cells
20/11/2001Fail urine test – 42 days off contact visits (drugs in urine only)
6/12/2001Damage and destroy property – ordered to pay compensation
16/8/2002Fail to attend muster – reprimand and caution
7. On 9 September 2003, Mr Botitu was released on parole.
8. On 18 March 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, informed Mr Botitu that the Minister was considering cancelling his special category visa because of his substantial criminal record and his past and present criminal conduct and inviting him to comment (G9). She also informed him that in making the decision, the Minister would be taking into account protected information pursuant to s 503A of the Act, his sentence administration report and the judge’s comments of 3 August 2000 at the Liverpool District Court. On 21 March 2003, Mr Botitu acknowledged receipt of the notice of intention and completed a questionnaire relating to his personal circumstances to be taken into consideration. In answering the questionnaire, he acknowledged his substantial criminal history and stated in relation to his criminal record: “Due to an addiction to heroin from the age of 18 years old, it lead me to desperite [sic] efforts to sustaine [sic] this addiction” (G10 p72). He also stated that it would cause his family “great stress and heartache … knowing and worring [sic] that I would be in a country that I have no family, employment, housing or support” (G10 p74). Mr Botitu also filed with DIMIA Character Section, copies of certificates for courses he completed while in prison, and character references from his uncles, Reverend Waisea Duwai and Reverend Tevita Vuli (G11).
9. On 16 March 2004, an officer of DIMIA’s Character Section informed Mr Botitu that the matters to be taken into consideration by the Minister would include his New South Wales criminal history, a sentence administration report dated 16 March 2004 and comments of Judge Tupman of the Liverpool District Court and giving him the opportunity to provide further information on his behalf by 6 April 2004 (G12).
10. On 5 April 2004, Mr Botitu’s sister contacted DIMIA and requested an extension of time for the filing of submissions, which was granted until 16 April 2004 (G p92). No further submissions were made by Mr Botitu or other family members.
11. On 28 May 2004, he was found to be in breach of his parole conditions, namely condition 4(a) fail to report to his supervising officer and condition (12) fail to attend for urinalysis, and he was readmitted to prison to serve the balance of the additional term.
12. On 29 July 2004, an officer of DIMIA’s Character Section informed Mr Botitu that the Minister or a delegate of the Minister would be making the decision as to whether or not to cancel his visa and that they would also be taking into account, a sentence administration report dated 27 July 2004 and a notice of review by the New South Wales Parole Board dated 8 June 2004. The officer also informed Mr Botitu that he had until 19 August 2004 to make further submissions to the department (G13). Mr Botitu acknowledged receipt of this letter on 29 July 2004 (G p96). On 11 October 2004, Mr Botitu was given a further opportunity to make submissions to the department by 18 October 2004 (G14), but no submissions were received.
13. On 12 November 2004, a delegate of the respondent decided to cancel Mr Botitu’s special category visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1 and G4). On 1 December 2004, Mr Botitu lodged an application for a review of this decision by the tribunal.
14. On 16 December 2004, Mr Botitu was released on parole from Parramatta Correctional Centre and immediately detained at the Villawood Immigration Detention Centre, New South Wales.
15. At the hearing, the applicant appeared in person and the respondent was represented by Avenish Chand, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the respondent at the hearing. Oral evidence was given in person by Mr Botitu, though initially he declined to do so. After I explained to him that unless he gave evidence I would have very little material to consider on his side of the case, he agreed to enter the witness box and take an affirmation. Although he answered all questions, it remained difficult to obtain much new or useful information from him. His demeanour was one of quiet resignation. At the conclusion of the evidence he declined to offer any submissions.
Relevant Law and Policy
16. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
17. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
18. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
19. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
20. In the present case, Mr Botitu does not pass the character test because of his “substantial criminal record”, having received on 3 August 2000, terms of imprisonment of two years and six months for robbery armed with offensive weapon, two years and six months for robbery in company, two years for robbery in company, two years and six months for robbery armed with offensive weapon (two counts) and eight years with a non-parole period of four years for aggravated robbery with wounding. He was released on parole on 9 September 2003 but on 28 May 2004 was readmitted to serve the additional sentence for breach of his bail conditions. He was paroled again on 16 December 2004 and detained in immigration detention. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Botitu’s visa.
Consideration
21. As was stated above, there is no dispute, and I find accordingly, that Mr Botitu does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, he has been convicted of a number of offences for which he was sentenced to a term of imprisonment greater than 12 months.
22. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Botitu’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
23. 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.
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.
Paragraph 2.4 explains:
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
24. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons, and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
25. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
26. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant has a lengthy criminal record since 1992 when he was aged 14. His record includes robbery in company and robbery with an offensive weapon. The robbery offences committed by the applicant in November and December 1999 are aggravated by the fact that he was on bail at the time. He has admitted that since the age of 18, his offences were committed to support his addiction to heroin. Judge Tupman of the New South Wales District Court said in sentencing Mr Botitu in respect of the robbery offences (G15):
They are quite clearly very serious offences, and particularly so in relation to the offence in which Mr Diab was stabbed.
So far as each of the other offences is concerned, whether it be bank tellers working at the ANZ Bank at Roselands, or other members of the public working in Kentucky Fried Chicken restaurants in other parts of Sydney, they were all no doubt terrified being confront [sic] by this prisoner and his co-offenders, in company, on occasions armed, sometimes at night, and in circumstances where they were vulnerable and unable to protect themselves. In all cases they were ordinary members of the community trying to go about their affairs engaged in lawful employment, some of them no doubt being young people working in jobs like Kentucky Fried Chicken jobs to make extra money to assist them through studies and the like, who simply do not deserve to have their lives put at risk by people like this prisoner for doing no more than going about their lawful affairs trying to earn their livelihood in a legal way.
[I]t would go without saying that each of them would not only have been terrified at the time of these offences, but more probably than not still bear some psychological scars as a result of these events.
27. Mr Botitu did not actually wield the knife or the other weapons in the armed robbery offences, including the occurrence in which Mr Diab was stabbed. Nevertheless, paragraph 2.6 of Direction No 21 makes it clear that armed robbery and any other form of violence against persons are to be treated as very serious and I so find in relation to the offences of robbery and aggravated robbery of which the applicant has been convicted.
28. Next, the tribunal is to consider the risk of recidivism. The applicant has been regularly before the courts since 1992, coming under the control of the Juvenile Justice Branch in August 1994 at the age of 16. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with previous convictions in Australia should be considered as having an increased risk of recidivism. Several of the offences he committed in 1999 occurred while the applicant was on bail. I also note that Mr Botitu breached his parole conditions, by failing to report to his supervisor and failing to attend for urinalysis, after having acknowledged receipt of a notice that the Minister was considering cancelling his visa. Judge Tupman noted on sentencing (G15):
In terms of assessing his prospects of rehabilitation they seem to me to be reasonably good, but as I have said, are entirely dependent on his being able to remain free of prohibited drugs and the associated criminal peer group that attaches to those who use prohibited drugs to the extent that this prisoner was.
While in jail the applicant has completed a number of courses aimed at rehabilitation. None of these is a vocational course, and his work activities have consisted mainly of maintenance work, supervised and unsupervised, at Muswellbrook Hospital. He said in his oral evidence that he has overcome his addiction to drugs, although his failure to comply with his parole conditions (notably the urinalysis requirement) raises some doubt as to whether that change is permanent.
29. Paragraph 2.10 of Direction No 21 states that “a non-citizen with several convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour”. In this case the applicant has engaged in continuous criminal conduct since 1992. He has offended while on bail and broke his parole conditions, even after being notified of the intention to cancel his visa. I therefore find that there is a significant risk of recidivism in this case.
30. The third consideration relevant to community protection is general deterrence which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa“ (Direction No 21 paragraph 2.11). Deterrence is another factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating criminal activity.
The Best Interests of the Child
31. There is no evidence that the applicant has any children who would be affected by a decision under s 501(2) of the Act.
Other Considerations
32. Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision. The relevant ones in this case are those in paragraphs 2.17(a), (c), (d), (h) and (j). The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen.
33. The applicant gave evidence that his parents reside in Fiji and that he has no relatives or contacts in New Zealand, his parents being of Fijian ethnicity. He has a sister who has lived in Sydney and two uncles, both ministers of religion, who have supported him since he came to Australia as a child. His sister has in the past on occasion given him some assistance with his legal and immigration problems, but she is currently living and working in the United States. At the hearing he acknowledged that his uncles and other family members in Australia could maintain telephone contact with him in New Zealand “if they choose”, but thought it unlikely that they would cross the Tasman to visit him: “They’ve got a life here”, he said.
34. If his visa is cancelled and he is returned to New Zealand, Mr Botitu will have to make a fresh start on his own. On the other hand, he is young, in good health and, according to his own evidence, free from drugs. He would be separated from the criminal peer group that attaches to serious drug users, and as Judge Tupman indicated, that fact could assist him in rehabilitating himself. While his educational attainments are modest, he seems to be of average intelligence and is outwardly presentable. I conclude that he would not face undue hardship in re-establishing himself in New Zealand, and indeed his rehabilitation could be assisted thereby.
35. Weighing up the primary and other considerations, I find that the other considerations do not outweigh the primary considerations of community protection and expectations. The decision under review should be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 24 January 2005
Date of Decision 4 February 2005Representative for the Applicant Self
Representative for the Respondent Mr A Chand, Clayton Utz
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