Brown and Minister for Immigration and Citizenship
[2009] AATA 79
•6 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2009] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5494
GENERAL ADMINISTRATIVE DIVISION )
Re Prince BROWN
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date6 February 2009
PlaceSydney
DecisionThe decision under review is affirmed.
……………[sgd]……………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – character test – whether the applicant passes the character test in s 501(6)(a) of the Act - whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 2 – community protection and expectations considered – best interests of the children considered – other consideration – in cases of very serious offending and a high recidivism risk, community protection and expectations have outweighed the best interests of the child and the other considerations - decision under review is affirmed.
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RELEVANT ACT/S:
Migration Act 1958 (Cth) (the Act): ss 499, 501
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Rauhina and Minister for Immigration and Citizenship [2007] AATA 1359
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Al-Kateb v Godwin (2004) 219 CLR 562
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rivera and Minister for Immigration and Multicultural Affairs [2002] AATA 261
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91
Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575
Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678
Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617
Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828
Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65
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OTHER AUTHORITIES
Direction No 21
REASONS FOR DECISION
6 February 2009
Professor GD Walker, Deputy President
Basic facts
1. The applicant Prince Brown, aged 23, was born in 27 September 1985 in Samoa and is a citizen of New Zealand.
2. He first arrived in Australia on 2 September 1998 at the age of 13 as the holder of a class TY subclass 444 special category visa and has not left Australia since. He has previously been considered for visa cancellation under s 501 of the Migration Act 1958 (Cth) (the Act) but a warning letter sent to him was returned unclaimed.
3. The applicant has two children, Silika Faletau, born 19 January 2003, and Janiece Faletau, born 17 February 2005. He states that they are of Tongan/Samoan nationality, but as their mother, Ms Elisiva (Siva) Faletau has said she is an Australian citizen and the children were born in Australia, they are presumed to be Australian citizens.
4. The applicant’s record of convictions extends from 2000 to 2005. Juvenile offences, heard on 18 December 2000, with the following results, were:
§Take and drive a conveyance without consent of the owner – taken into account on form 1;
§Drive without a licence on a road – taken into account on form 1;
§Driver, special category, exceed special range PCA – taken into account on form 1;
§Special category driver, drive with special range PCA – taken into account on form 1;
§Unlicensed for class, 1st offence – taken into account on form 1;
§Assault occasioning actual bodily harm – taken into account on form 1;
§Aggravated robbery – filed in court;
§Affray x3 – filed in court;
§Destroy or damage property – filed in court;
§Enter dwelling with intent (not steal) – 12 month control order;
§Break and enter building (offence not steal) – 12 month control order; and
§Common assault – taken into account on form 2.
5. He was next convicted in the Children’s Court on 19 February 2003 of robbery in company. He received a penalty of a 12-month control order with conditions.
6. The applicant breached that control order. As a result the order was revoked and on 1 August 2005 he was called up to serve 12 months’ imprisonment with a non-parole period of six months.
7. His convictions as an adult are for assault occasioning actual bodily harm (two counts), for which he was sentenced on 1 August 2005 to 20 months’ imprisonment with a non-parole period of 12 months. On 4 November 2005 he was convicted of assaulting an officer in the execution of his or her duty and stalk/intimidate with intent to cause fear of physical/mental harm (two counts) and sentenced to six months’ imprisonment on each charge, to be served concurrently with the 20 months’ sentence. He was released on parole on 16 May 2006.
8. On 3 November 2008 a delegate of the respondent cancelled the applicant’s visa on the basis of his substantial criminal record as defined in s 501(7) of the Act. The basis for that finding was his convictions on 1 August 2005 for assault occasioning actual bodily harm, for which he was sentenced to 20 months’ imprisonment.
9. The applicant applied to this tribunal for review of that decision on 20 November 2008.
10. On the respondent’s application, summonses to produce documents were issued and a summons hearing was held on 19 January 2009 at which the applicant and his mother, Mrs Maria Brown, the applicant in a factually related expedited visa matter (AAT number 2008/5492), were invited to participate by telephone, and did so. The proceedings at the summons hearing are described in the decision on Maria Brown’s application.
11. At the hearing, the applicant was represented by a friend, Mr Nasser Rajab, while Ms Thérèse Quinn and Mr Lenny Leerdam of DLA Phillips Fox represented the respondent. The documents 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 other documents tendered by the parties at the hearing. The applicant and several other witnesses gave oral evidence in person, others by telephone.
Issues
12. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
13. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (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 ground in the current matter is paragraph (a) as follows:
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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);
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14. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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15. Under s 499(1) of the Act, the Minister may give written 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. That includes this 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.
16. 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 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.
The applicant’s evidence
17. At the hearing the applicant adopted his two written statements, one dated 18 November 2008 and the other dated approximately 2 December 2008 (part Exhibit A2). The latter statement consists mainly of complaints about his detention on 14 November 2008 and since, but concludes by stating that growing up as a teenager in a low socio-economic area can dictate the way one views life. That did not excuse his behaviour but did have an impact on his choice of friends.
18. His life had turned around when he met his partner, the mother of his two children. That was when he realised that his existing lifestyle was not normal. He did not want his daughters to live in the way that he had chosen to live and he realised that in order to have a better life he had to live that better life. That gave him a reason to be a better person and to work his way out of that environment.
19. In the statement of 18 November 2008 the applicant stated that he had moved to New Zealand at the age of two and then in 1998 had moved to Australia.
20. He had started getting into trouble at the age of 14, and before he knew it he was locked up. He did not care about anything until he met his de facto partner in 2001, Elisiva Faletau, an Australian citizen. When she became pregnant he decided he should settle down, having previously had an alcohol problem. In 2003 his second daughter was born and he knew he had to change for the sake of his children.
21. The younger child has ADHD and her mother finds her difficult to handle on certain occasions. His partner is finding it difficult to manage while he is in detention and his daughter Silika is afraid to attend school because she fears that the children will tease her because her father is absent. His daughters are what is holding him back in Australia.
22. His failing the character test is being assessed on the basis of an assault that occurred in 2005. He had served his time and feels that Australia needs to attend to its own backyard before trying to remove someone who is trying to change and take care of his family, when there are murderers, rapists and paedophiles roaming the streets.
23. He was not happy with the Campbelltown police, who for years had been trying to pin anything they could on him. He had complained several times to his probation officer about police harassment of his friends, his family and himself.
24. If he were a repeat offender he would have been incarcerated every year. It was not as if he had murdered someone. All he does now is go to work and mind his own business, taking care of his family and spending time with them at weekends.
25. New Zealand is not the life he would want his family to be in, as the opportunities in Australia are better. If he were removed, his daughters would be devastated and humiliated. His five year-old daughter would not even attend school for a few weeks until he returned home, and his younger daughter does not feel safe because she is traumatised by the police having removed him. It had disrupted everything from his work to his family.
26. Australia was supposed to help people with such problems, but instead they were seeking to remove the problem instead of accepting how he had been rehabilitated. They were cancelling his visa because of two convictions from 2005. He regretted his poor behaviour in the past and had tried to help those in need, for example through Father Chris Riley’s Youth off the Streets program. He had tried to give something back to the community and had received positive feedback from everyone in the community.
27. In cross-examination the applicant said he has an elder brother in Samoa and another brother in New Zealand. He had met Siva in 2000 and they had begun to live together in 2006.
28. He admitted the convictions in his criminal history (G pp58-62), including assault and robbery in company. He did not know what the victim protection order issued against him (G p65) was about.
29. In relation to his convictions on 18 December 2000 for assault occasioning actual bodily harm (charge number H10327153), he denied that he had called on the victim for the purpose of collecting a debt (Exhibit R4, p620).
30. Ms Quinn then asked the applicant about his statement at the interview in relation to his convictions for assault occasioning actual bodily harm on 1 August 2005 (charge number H20401021) recorded in the fact sheet (Exhibit R4, p98). The fact sheet records that during the interview he twice asked police for the addresses of the witnesses, stating that he wanted “to talk to them about this”, leading police to fear that he might attempt to threaten or intimidate them. He conceded that he had probably asked for the addresses but stated, and later repeated, that he had no idea why he had asked for them, he had just wanted to talk to the witnesses, not to threaten them. He then asked if there was any proof that he had actually said it, such as in the form of a tape.
31. He accepted the facts of the most serious assault occasioning actual bodily harm, for which he was sentenced on 1 August 2005 as stated in Sides J’s sentencing comments (G pp69-70). He claimed, however, that the victim had stood up and delivered the first punch. They had been talking and the victim said something in Samoan that the applicant did not like. He had not told the police anything about that because the victim was a friend. He had pleaded guilty to the offence.
32. As regards the convictions for assaulting an officer in the execution of his or her duty and stalking or intimidating with intent to cause fear of physical or mental harm on 4 November 2005 (charge number H25539685), the applicant said he was there to help in trying to stop violence by others, but the police arrived and administered pepper spray.
33. He had not, contrarily to the magistrate’s findings (Exhibit R4, pp756-757), boasted that he ruled Airds, or that it was his place, or warned off the police in crude language, but had admitted saying those things because his lawyer had told him to. Nor had he threatened to slit the throat of one of the victims – the police would say anything.
34. He had pleaded not guilty to the charges but had been convicted because the lawyers for the police had brought up his past convictions in the course of the trial. When it was put to him that his past convictions would have been listed at the sentencing stage, not during the trial, he repeated that it had been raised during the trial and that his lawyer had objected.
35. The applicant was referred to a probation case note (Exhibit R4, p129) dated 24 June 2008, stating that although the applicant was unemployed he was not receiving any unemployment benefits from Centrelink. He survived on financial support received from his partner and her family. He said he did not know why he had said he was unemployed, because he was in fact working at the time, but then said it was because he had been receiving wages in the form of unreported cash and did not wish to create trouble for his uncle, his employer at the time. He had not received any support from his partner, but rather from his mother and his partner’s family. He had not received money from drug dealing.
36. The applicant was asked a number of questions about the brawl at the Smithfield RSL club on 6 June 2008 that led to his facing certain charges of affray to be heard in March 2009. He refused to answer any of the questions on the ground that the answers might tend to incriminate him. He had not seen the closed circuit television (CCTV) footage.
37. Ms Quinn then turned to the assault matter (charge number H30953129) for which the applicant was placed on a bond on 16 May 2008 (Exhibit R4, pp540-541; Exhibit R3, annexure). This was the assault on his partner at the 7-11 convenience store in Queen Street, Campbelltown. He denied that he had cut his hand when prising open the closed doors of the store or that he had pulled the victim or forced her to the floor. He had simply asked her for the purse, which contained money belonging to him, and walked out. He had thrown a packet of potato chips, however. He had pleaded guilty to the charge because his lawyer had told him to do so, but a push was not an assault. In any event he was drunk at the time. He agreed that the incident occurred only four days after his parole expired.
38. He had said he had successfully completed alcohol and violence prevention courses while in jail in 2005, but admitted that the offence at the 7-11 occurred the day after he had received a favourable parole report (Exhibit R4, p125). He admitted that he had on that occasion drunk to excess and committed offences, but replied that it was not really serious, “just an argument with the missus”.
39. The applicant denied any association with the Rebels outlaw motorcycle gang (OMCG) as stated in police intelligence reports (Exhibit R1, annexures pp72, 74, 84). He simply “hung out” with a few of the Rebels members and had told police that he knew some of them, but was not a member. The reports were wrong. He had never heard of the 884 gang referred to by Detective Inspector Con Galea (Exhibit R1, para 36) and said he had no 884 tattoo on his arm. He demonstrated that by rolling up his sleeves in the witness box; his arms were heavily tattooed but no 884 inscription was visible.
40. He denied the reports that he was seeking to take over the local drug trade by means of intimidation. Although he had been convicted of intimidation in 2005, he had been innocent of that offence. Despite witness statements that he was a motorcycle gang member, he only hung out with them for a few beers and had never touched drugs.
41. He denied knowing Michael Chmielewski or ever having been to 7 Longstaff Way, Claymore (Exhibit R1, para 24). He also denied the intelligence report that he was a frequent visitor to 7 Longstaff Way in connection with drug transactions with Chmielewski (Exhibit R1, annexure pp42-43). He could not recall whether he was on parole at the time of the event reported (4 December 2006).
42. He admitted that after his release from prison, he had lived with his mother, not with his de facto as he had told the parole authorities, but added that he had visited her. Asked if his association with his mother involved drugs, he replied that he had not been jailed in connection with drug offences.
43. In re-examination he repeated that he had no idea why he had asked for the addresses of witnesses and denied claiming that he ruled Airds and warning the police not to approach him. The police would say such things because they had always hated him. He had been charged with entering a house and maliciously inflicting actual bodily harm while armed with a .22 rifle, but no gun had been found.
44. His offences all occurred when he was under the influence of bad friends. He had completed courses on alcohol and violence prevention, had been an active footballer and had trained and coached other teams, including Father Riley’s team. He had also been involved in boxing.
45. It had been the staff of the 7-11 who had called the police in connection with the alleged assault on his de facto, but it had just been a normal argument and he had given her “a little shove”. They had then gone home together.
46. He said he had never touched drugs in his life. He acknowledged that his physical size and his tattoos might have the effect of intimidating some people, but it was not his intention to do so.
Applicant’s supporting witnesses
47. In her statement of 18 November 2008 (part Exhibit A2), Siva Faletau, de facto partner of Prince Brown, wrote that the applicant supports his family financially and physically. Without him, she and their two daughters would be in financial hardship. Her elder daughter Silika for weeks refused to attend school, believing that she would be picked on at school because of her father. She fears that her father will be taken again, as she has lost him from the age of a couple of months until now. The younger daughter Janiece has had it hard. She does not like the police because they take her father away all the time. That is not what a five and three year-old should be going through.
48. The applicant had tried to turn his life around for the sake of the children. They planned next year to save money to buy a house and eventually get married. Ms Faletau said she seriously did not understand why his visa was cancelled when he has a family here in Australia. There are other people who have committed more serious crimes than he has.
49. The applicant has a violent history because he came from a broken family. He was young and so corrupted that he did not know how to control himself, but he regrets it now and only needs a second chance. He is currently employed and his employer is willing for him to return to work.
50. All he did was to help people in Airds. The community was afraid of him because the police were going around asking people if he had done anything.
51. It is not the same without him at home. Janiece is difficult because she has ADHD, and the applicant is the only person who can control and calm her.
52. The applicant has been discriminated against because of two convictions dating back to 2005, but he has served his time. Australia just wants to remove the problem, instead of looking at the interests of his family and to see that he has changed. There would be no chance of his re-offending as he has so much to lose.
53. They could not live in New Zealand. Ms Faletau was born and raised in Australia and would not have cultural similarities with New Zealand simply because she is of Pacific Islander appearance. She has no family there and there are very limited opportunities and resources. At the hearing Ms Faletau said that she would find it difficult to settle in New Zealand. It would strain the relationship and harm the girls. She herself has never left Australia.
54. In her statement of 29 October 2008 Ms Faletau described the applicant’s difficult upbringing and acknowledged that his record was ‘very appalling, it’s shocking’ but said he had been young and foolish at the time and that he was of good character.
55. She had supported him and shown him to a better life. He drank less and started work at her uncle’s family business. But after Janiece’s birth in 2005 he had returned to drinking and had been imprisoned again. She had kept supporting him, however, and he was working hard for his daughters and helping the local youth. He has a close relationship with his daughters and plays a major part in supporting the family in all respects.
56. Ms Faletau told Mr Leerdam that her relationship with the applicant had begun in 2001 and the first child was born in that year. Two other children had been stillborn. They had lived together since his release from prison, and before that he had lived with his mother. She had never seen the applicant use drugs or assaulting anyone. She herself had never used drugs.
57. In relation to the applicant’s convictions for assault occasioning actual bodily harm (charge number H20401021), Mr Leerdam drew the witness’s attention to a passage in the fact sheet stating that at the police station she had provided an alibi for the applicant and was deemed unsuitable to act as a support person (Exhibit R4, p98). She replied that she could not remember the circumstances, except that she was not allowed to be a support person. She had said he was at work at the time, but was not trying to give a false alibi for him, because she believed he was at work.
58. She acknowledged that the applicant’s parole conditions required him to live with her at Hazeldene Way, but that he had lived also with his mother and stayed with his fiancée when the parole officer came visiting. It appears that he informed the parole service of the arrangement.
59. Ms Faletau said that the applicant now only drinks when they go out. Asked if he was intoxicated at the time of the assault at the 7-11, she replied that she could not really remember because she herself was intoxicated. She did not know what she was doing and did not recall all the details, but there was no assault. He had taken the wallet, which contained some money of his, but he did not push her and she did not recall him pulling her or falling to the ground. In any event it was not enough to constitute an assault.
60. Ms Tina Faletau wrote (part Exhibit A2) that she had known the applicant for over six years and had seen the many changes he had made with the commitments and responsibilities he has for his family.
61. He had had a rocky past and had paid for the consequences of his actions. She herself had made some bad judgments about him, but he is a generous man and very supportive of his family. His relationship with his daughters is very strong, and since their birth he had made a complete turnaround. She believed he should be with his family.
62. At the hearing Ms Faletau said she did not believe the assault charges that had been brought against him. She had never seen him use drugs or be associated with gangs.
63. She had a close relationship with her sister Siva, who confides in her, but she was unaware of the assault at the 7-11 store, although she would expect to know if the applicant had been charged with anything.
64. Ms Melissa Choca had no hesitation in writing a character reference (part Exhibit A2) in support of keeping the applicant in Australia. She believed it was in his best interests as well as those of his family.
65. She had known him for a period of three years as a loving and caring father, uncle and partner. She had been impressed with his efforts over the last three years to stay out of trouble and become a good role model for his two daughters. He has worked hard and dedicated himself to his work so as to be able to provide a stable family environment for his partner and daughters. Many people make assumptions about the type of person he is, but they are wrong. He is a good caring family man who has done nothing but try to prove that.
66. In cross-examination Ms Choca said she had met the applicant through a friend. The applicant is the uncle of her friend’s daughter. They had met over three years ago after he was released from prison, but she had not asked why he was in jail as that was in the past. She was unaware that he had been convicted of assault occasioning actual bodily harm or of the offences of which he had been convicted in the last three years, including the assault on his partner, or of the pending charge of affray, but knowing about them did not change her opinion.
67. Ms Susana Cisternas had also known the applicant for about three years, she wrote in her letter of support (part Exhibit A2), and had found him to be a kind, caring father and partner. She did not think he was the person that he had been made out to be. He deserved to stay in Australia. If he were given the chance, people would see the caring person that he really is.
68. Ms Cisternas also conceded in cross-examination that she was unaware of his convictions for assault occasioning actual bodily harm, his assault on his partner or the charge of affray, adding that she had not seen that side of him. In any event she would not change her view, as that was not the person she knew. She had never seen him take drugs and knew nothing about claims that he was involved in drug offences.
69. In a letter dated 24 November 2008 (part Exhibit A2), Ms Dora Marinopoulos stated that she had been married to the applicant’s uncle and had known him since an early age. She had found him to be very polite and generous. She recognised that there is a great deal of bad publicity about him, but it was mostly gossip and people tended to follow what was said in the media.
70. The applicant is a different person now, he has a job and works to support his family through thick and thin. His two daughters could not live without him and she would not wish him to be away from his family. He did not deserve the treatment he had received.
71. Ms Marinopoulos also said she knew nothing about his troubles with the police before or after the age of 18 or his convictions for assault occasioning actual bodily harm. She knew he had been in jail but did not know on what charges, and did not know about any assault on his partner. In any event that knowledge did not change her opinion, as he had not done anything to hurt her or anyone close to her.
Psychological evidence
72. A report dated 3 November 2000 by a psychologist, Ms Emma Collins (Exhibit R4, pp630-634), noted that the applicant at the interview was frequently vague in his reporting of facts, and details had to be confirmed with external sources where possible. “This assessment should be viewed with caution given these findings”, she wrote.
73. He had reported that his peers influenced his behaviour, but in contrast also reported that he was the leader over them and that they do as he says.
74. He had told the victims who he was “for fun”. “These reports of revealing his identity are concerning”, Ms Collins pointed out, “as Prince appears proud of his criminal conduct and the increasing fear of him that is reported within the community”.
75. He admitted to daily heavy use of alcohol and intermittent use of marijuana.
76. Ms Collins concluded that he had a short but escalating history of severe offending behaviour. She continued:
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Prince’s aggressive behaviour is concerning because he minimises its impact and does not appear willing to address his violence. He similarly minimises the effects of his alcohol use, and the effects of past familial experiences (at p633).
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77. The report expressed concern that if released into the community he would continue to associate with inappropriate peers and his criminal conduct might continue to escalate. He did not report any clear strategies for remaining free of offending and appeared unwilling to seek assistance with it.
78. His mother had reported that it might be best for her son to return to Samoa. A positive change in behaviour while in custody had been noted, particularly regarding schooling and behaviour management. If he did return to Western Samoa, that might address his future offending behaviour and the reported fears within the community.
79. A probation and parole service case plan report dated 22 May 2008 (Exhibit R4, p6) stated that the applicant was unemployed but not receiving any benefits from Centrelink. He had no form of income. The current offence was against his partner but he minimised his involvement in the offence. “Despite being intoxicated at the time of the offence and not having a full recollection, client disputes the Police facts claiming that Police are out to get him”. He admitted that he had many associates who had been involved in criminal activities. He had a history of alcohol-related offences and admitted that at times he could not recall events that occurred while he was intoxicated.
80. The applicant also tendered (as part of Exhibit A2) a number of other letters of support from Paul and Melissa Hiron, Phillip Muuda, Sarah Allan, Michael Chmielewski, Kirsty Chmielewski, Erika Dougall, Jamie Roberts (director of Statewide Sleepers), Raewyn Leota (administrative assistant at the Airds Local Enterprise Centre), Maria Kainuku, Eva Faatolo, Charlie Mansour, Sonia Cisternas, Nancy Cisternas and certain unidentified correspondents with indecipherable signatures.
81. The letters attest to his qualities as a father, friend, neighbour and partner. Mr Roberts considers him to be reliable and a good worker and would like to continue his duties with the company as soon as possible. Ms Leota describes the applicant as an excellent role model in supporting the youth of the community and trying to make Airds a better place. He had overcome “personal issues” in an impressive way despite “the many barriers placed in his way”.
82. Also included in Exhibit A2 is a petition bearing 81 signatures (also tendered at Maria Brown’s hearing) expressing concern about the cancellation of the applicant’s visa and stating that he is of good character and would make a model citizen.
83. The applicant’s petition makes no mention of his encounters with the criminal law. The letters of support either reveal no awareness of the applicant’s criminal history, including his most recent offences and charges, or else are in denial about them.
Respondent’s additional evidence
84. In addition to the G documents, the respondent relied on further evidence obtained by way of summons. Parts of it have been referred to above. The respondent also called two police witnesses. The applicant objected on the ground that this large quantity of material had not reached him until two days before the hearing. The respondent replied that reliance was placed on only a limited number of specified pages in the documents. I admitted the evidence for the same reasons as stated in relation to Maria Brown’s application.
85. By agreement, the evidence of a third police witness at the hearing of Maria Brown’s application was admitted. Detective Senior Constable Michael Mannah described in his affidavit (Exhibit R2) how he obtained CCTV footage of a brawl at the Smithfield RSL Club on 6 June 2008. The applicant and his mother Maria Brown were identified by other police from the footage as a result of a station memo being circulated. They were subsequently charged with affray and are due to go to trial at Fairfield Local Court on 17 March 2009.
86. The witness tendered a CCTV disc (part Exhibit R2). He indicated a number of points at which the tribunal could view relevant material. Those excerpts related to Maria Brown’s hearing, but in submissions Ms Quinn listed the parts relevant to the present application. They were as follows (the numbers refer to the time – ie the excerpts are of events that took place after 11:00 pm):
§Camera 7: 23:35 – 40;
§Camera 8: 23:35 – 38;
§Camera 9: 23:37 – 40;
§Camera 10: 23:37.50 – 23; 39;
§Camera 11: 23:37 – 38
87. Detective Inspector Galea, crime manager at Campbelltown local area command, adopted his statement dated 27 January 2009 and annexures (Exhibit R1). Having interrogated the Computer Operational Police System (COPS) and other indices, the witness listed a number of reports over an 11-year period. In summary, they included the following:
(a)26 November 1998: an Airds resident said the applicant was the leader of a Pacific Islander gang called the “FOBS” and had attempted to assault him;
(b)10 December 1999: police attend at an Airds residence after a summons by the occupant in relation to persons kicking in her door. She complained that the applicant and others had attempted to force entry into the premises after being refused access to speak with a man who had taken refuge there. Both the occupant and another person present refused to give police further details. The police officer who submitted the information report believed the incident was drug-related;
(c)19 October 2000: a “reliable community source” informed police that the applicant possessed a pistol that he hides in the ceiling of his residence, along with drugs. The premises described were well known for drug activity and it was claimed that the applicant had fired the handgun in the vicinity;
(d)2 December 2001: the applicant, at the time a juvenile, was reported to have used his relationship with the doorman at the Ettamogah Pub to gain entry, and once inside was selling cannabis to patrons;
(e)14 October 2001: the applicant found by police in the front passenger seat of a car reportedly involved in a carjacking. The alleged victim was aggressive towards police, stating that there were no problems, but his father was appreciative;
(f)12 April 2002: a community source attended Campbelltown police station and provided information that the occupants of 24 Teeswater Place, Airds, Prince Brown, Saumaini Fiti, Maria Brown and an associate were selling cannabis. The source stated that persons would enter via the rear gate and that the transactions would take place on a sofa under the carport. The cannabis was sold in resealable plastic bags kept by the POI around their waist and were usually stored inside a kitchen cupboard or in a plastic Aldi shopping bag. The source also stated that the applicant had a group of young Aboriginal males selling cannabis on his behalf in the underpass under Briar Road, Airds;
(g)16 May 2002: a police officer submitted a report outlining that the applicant had indecently assaulted a child, groping and fondling a girl aged 13, who refused to make a formal complaint to authorities;
(h)1 February 2002: a community source contacted Campbelltown police about an expected brawl that was part of a turf war involving Maria Brown. The local Aboriginal community was planning to take action because of drug dealing by Maria and Prince Brown. There was also information relating to Prince Brown being involved in a number of break, enter and steal offences in the Airds area;
(i)21 October 2003: the applicant was under investigation in relation to a grievous bodily harm assault in Airds. All witnesses were, however, afraid of repercussions if they assisted police with their enquiries;
(j)3 July 2004: a search of certain breaking and entering suspects revealed an address book containing telephone numbers and an “order list” bearing the words “sold to Prince” and a telephone number, which proved to be Elisiva Faletau’s;
(k)28 October 2004: a community source informed Campbelltown police that the applicant and his mother were selling amphetamines and cannabis from sheds in the front of 17 and 19 Dangar Way, Airds;
(l)28 February 2005: a community source informed Campbelltown police that a group of up to 60 Pacific Islanders would be attending a confrontation at Macquarie Fields. The group was to be made up of persons who refer to themselves as the “Bloods”, who are led by Prince and Matthew Brown. The claimed motivation for the confrontation was a dislike for police;
(m)16 May 2005: information received named the applicant as leading disorderly and drunken behaviour outside the Ruse Tavern. Because of continued intimidation of the manager and bar staff, all doors of the tavern were locked;
(n)23 May 2006: a police STMP (suspect targeting management plan) assessed the applicant as an extreme risk;
(o)4 December 2006: a police information report linked the applicant and his mother with drug supplier Michael Chmielewski who was reported to be supplying amphetamine, cannabis and “ice” from his Claymore address. The premises were regularly visited by the applicant, who collects money and drugs from Chmielewski. Maria Brown was attempting to take over the drug supply within Claymore, using standover tactics and violence with the assistance of the applicant and Chmielewski;
(p)12 June 2007: an information report suggested that the applicant had returned to Airds after moving to Claymore. There was community talk that the Brown family was trying to re-establish their control of Airds since Prince had departed for Claymore;
(q)23 August 2007: an intelligence report from a Campbelltown detective described the applicant as exhibiting his influence over other criminal identities in Campbelltown and brokering a “peace treaty” between Cory Parker and Faletasi Fiti after a home invasion;
(r)28 November 2007: a Campbelltown detective submitted a report of threats made by the applicant to “shoot up” a house at Reliance Way, Airds. Subsequently the occupant was approached by an unidentified male dressed in Rebels OMCG colours and tattoos and was told that the applicant had organised for the Rebels to “do a job” on the occupant’s house. He also said that the applicant was a nominee for the Bringelly chapter of the Rebels, an allegation supported by a conversation by another detective with a community source and reported on 25 November 2007;
(s)14 March 2008: the applicant and another in an intoxicated state were acting aggressively towards members of the public and taxi drivers, and smashing bottles and yelling;
(t)20 April 2008: when arresting a member of a group of Pacific Islanders who had exposed his buttocks to police, they were confronted by the applicant, his brother Matthew, his mother and Nasser Rajab. Those persons then had a standoff with police, who were conscious that their arrest might be hindered by the group, who were believed to be part of the 884 gang. A community source had stated that the gang was prepared to hinder police in the execution of their duties, particularly during arrests;
(u)12 May 2008: the applicant reported to Campbelltown police station in accordance with his bail conditions. In a conversation with a constable concerning the applicant’s membership of the Rebels OMCG, the applicant indicated that his uncle was a member of the Rebels and was organising a Harley-Davidson “Soft-tail” motorcycle for him. The applicant also said that the work he does for the Rebels is “pretty cruisey”. Shortly afterwards, on 24 May, police were told by a community source that the applicant was involved with the Rebels OMCG chapter. On 2 July, Rebels were reported to be looking for the applicant and his mother;
(v)3 July 2008: Campbelltown police report information that an assault involving a small number of males at the Airds youth centre involved the applicant;
(w)21 April 2008: information from a person held in custody stated that the applicant is the leader of the 884 gang. Members may be identified by an 884 tattoo on their inner arm;
(x)26 August 2008: a community source contacted a chief inspector and stated that the applicant and his mother were using violence and intimidation to take over the drug trade in Airds. Suppliers and buyers were “bashed if they do not use the BROWNS for their drug supply”. The source also stated that the BROWNS were using standover tactics around the IGA shopping centre at Airds;
(y)6 September 2008: at Airds shopping village, Campbelltown police spoke to the applicant, who said he was no longer a member of the Rebels, that he had asked to have a break from the club for about six months and had no intention of returning;
(z)17 September 2008: an external agency informed Campbelltown police that the applicant had taken over drug running in Airds;
(aa)3 October 2008: an external agency informed Campbelltown police that the applicant had assaulted a man on the weekend of 27 and 28 September 2008. It was suspected that the assault might be linked to a number of home invasions, extortions and threats of violence in Cheviot Place, Airds, in the preceding months;
(bb)28 November 2008: Campbelltown licensing police officer inspecting the Riverside Inn was told by staff of incidents in which the applicant had instigated violent confrontations with other patrons. In the course of the inspection, a community source approached the officer with two friends and said, “You guys did a great job getting Prince BROWN out of town. We can finally come to the pub and not feel scared anymore that we are going to get beaten up by him”.
88. The statement concluded that up until the time of the applicant’s detention, police intelligence holdings strongly suggested that he had significant involvement in the sale and distribution of illegal drugs in the Airds area. In addition, there was significant intelligence indicating that he uses violence and intimidation to progress his drug and other illegal activities. Many victims and witnesses to crimes were reluctant to make a formal complaint to police or give evidence in court against the applicant and his family for fear of reprisal.
89. At the hearing Detective Inspector Galea noted that Michael Chmielewski was mentioned in the intelligence reports in connection with assaults and drug offences, in partnership with the applicant. If the applicant said he did not know Chmielewski, it might be to distance himself from someone involved in the drug traffic.
90. Since November 2008, the applicant’s detention had exerted a calming effect in the area. People have less fear of violence from the applicant or instigated by him. His visa cancellation was widely publicised and people wanted him deported permanently. The extensive intelligence reports revealed an overwhelming theme of violence and intimidation by the applicant in the area, resulting in a reluctance to make formal complaints or give evidence.
91. Detective Inspector Galea’s commander and the commissioner of police had spoken to him about deportation as a possible deterrent. Jail sentences were only periodic and the offender would return to the area after a relatively short time and might resume previous criminal activities. Deportation, however, was a major deterrent that would send a message all over the New South Wales non-citizen criminal population. It would improve the community perception of safety.
92. While there was no vendetta against the applicant, he was identified as a risk and was the subject of targeted investigations as a person of interest. He had accumulated more intelligence reports than convictions because victims and witnesses were reluctant to commit themselves, especially on paper. They were more inclined to give anonymous reports.
93. It was hard to judge whether such reports were 100 percent accurate, but they had been used in the past as the basis for covert operations that had proved successful.
94. In relation to the applicant’s asking police for the addresses of witnesses so that he could “talk to them” (Exhibit R4, p98), the witness said that any investigating officer would conclude that such a request was aimed at interfering with, or deterring the witness. He himself had never been asked for addresses. In any event, police are not permitted to supply addresses or contact details except in special circumstances (see police directive, Exhibit R5).
95. In cross-examination Detective Inspector Galea rejected Mr Rajab’s suggestion that the reports were mere unconfirmed allegations, saying that they were information reports, and some paragraphs referred to other prosecutions. Intelligence reports are information from police or from outside sources including other agencies. They are assessed and given a reliability rating, known as an “Admiralty Rating” (for unknown reasons). Police would ask questions of the informant in order to determine the report’s quality. Whether the report went on file or not depended on its source.
96. Senior Constable Camille Alavoine, information manager with the intelligence unit at Campbelltown local area command, adopted her witness statement and the profile she had prepared of the applicant (Exhibit R3). She said at the hearing that she had prepared the profile on the basis of events and reports contained in COPS.
97. Senior Constable Alavoine’s attention was drawn to page 15 of the profile and to the fact that it contained 23 reports for 2008 alone. She replied that it showed a pattern of increasing reports over a period.
98. In cross-examination the witness said the profile was not based only on intelligence reports but also on events and charges. Her approach was to endeavour to base the profile on all available material. Intelligence reports could consist of information from police directly, from members of the public, from community sources, from Crimestoppers or from other agencies. Not all reports could be confirmed.
99. The witness acknowledged that the applicant had never been charged with any firearms offences, but she was required to include the firearms reports for the benefit of operational police. She had quoted the source of those reports. Again, there was nothing to indicate that he had ever been seen wearing Rebels colours, but she had mentioned it because information received said that he had.
The CCTV footage
100. As was noted above, the respondent tendered a disc containing colour CCTV footage of the brawl at Smithfield RSL club on 6 June 2008. It came from five separate cameras with different viewing angles and the frames appear to have been taken at intervals of a half second to one second. As the equipment at Villawood would not play the disc, Ms Quinn arranged for a suitable computer to be delivered to the hearing room. The applicant was offered the opportunity to view it and the luncheon adjournment was extended to an hour and 45 minutes to enable him to do so. He declined to avail himself of the opportunity.
101. In his explanation from the bar table, Mr Rajab said on behalf of the applicant that the incident began after the arrival of some Gypsy Jokers gang members wearing club colours, which apparently are not permitted at the RSL club. As a man wearing a black jacket bearing the inscription “Gypsy Jokers Australia” is visible, I will assume that the group comprised, as Mr Rajab asserted, members of that club. That assumption is supported by the evidence of Detective Senior Constable Mannah in the Maria Brown hearing, which by consent was admitted in these proceedings, and which identified Gypsy Jokers members as participants.
102. Mr Rajab said that the violence began when the applicant was outside, but that when he returned he walked into the middle of the fracas and tried to break it up. The applicant is indeed not visible at the start of the fight, but soon enters the scene, as does Maria Brown (who had been involved in the initial stages near the reception desk), and gestures towards the Gypsy Jokers, as if telling them to leave, joining in a scuffle on a stairway landing. The Gypsy Jokers then appear to initiate a strategic withdrawal, at one point carrying one of their fallen members.
103. Then the applicant and a small group comprising Maria Brown, a man in a white Ohio State T-shirt, a man in a green T-shirt and a man in black, follow the retreating group to the reception desk, the man in the white T-shirt gesturing aggressively.
104. Near the reception desk the group accosts a bearded man in black (named Bint, according to Detective Senior Constable Mannah), a Gypsy Joker, causing him to bend double, facing away from them and shielding his head with his arms. The group then causes him to fall to the floor, probably as a result of a kick by the man in the white T-shirt.
105. When Mr Bint is hunched on the floor, still protecting his head with his arms, the applicant is shown kicking him at least three times with increasing force, ending with what appears to be a running kick. At one point when the applicant begins to kick the victim, the man in black is seen briefly holding the applicant’s right arm as if to restrain him.
106. Immediately before this encounter the white tiled floor is clean, but after the applicant has finished kicking the victim, there is a significant amount of blood on the floor. It is not clear, however, whose blows caused the bleeding.
107. The group then follows the retreating Gypsy Jokers out the door. Maria Brown picks up a black jacket from the floor, and the applicant takes it. Maria Brown then appears to be restraining the applicant from following the Gypsy Jokers outside and ushers him back into the club. He proceeds past the reception desk but is glimpsed briefly trampling the black jacket.
108. The applicant's victim, Mr Bint, was locally outnumbered five to one by the applicant’s group and was clearly not resisting or offering violence in any way. The applicant's claim of self-defence appears untenable. The stills taken from the recording, especially numbers 2, 3 and 4, plainly support that conclusion. While the applicant seems not to have initiated the brawl or to have been involved in its early stages, he was an active and aggressive participant in it.
109. It will be for the local court to decide whether the applicant’s actions are established beyond a reasonable doubt and, if so, whether they constitute the offence of affray. For present purposes, however, I am satisfied on the preponderance of probabilities that the applicant on that occasion violently assaulted at least one person and did not do so in self-defence or in the defence of others.
Applicant’s submissions
110. In his submissions on behalf of the applicant, Mr Rajab said that when the applicant had come to Australia at the age of 12 he was a churchgoer who had never been in any trouble. He had offended only months later because of peer pressure and the effects of alcohol. Even at that age, he was physically big, with the result that bullies made use of him to do things for them that he was not accustomed to. They exploited him and introduced him to alcohol. He complied because he wanted to fit in and impress his peers.
111. He is heavily tattooed because of cultural reasons, not for the purpose of intimidating, but his tattoos, coupled with his size, have that effect.
112. Some of his charges had been reduced. He had never been charged with a firearms offence because such reports were based on poor intelligence. He had no drug charges and no assets or money. For that reason he had not been able to engage legal representation. He had never been the subject of a proceeds of crime examination.
113. The assault in 2003 was serious, but the applicant claims that it was self-defence, as the victim had punched him first and provoked him. He is now on friendly terms with the victim.
114. He had undertaken alcohol, anger management and relapse prevention courses and his performance on parole had been good. The main charges against him had been when he was a juvenile, still learning and maturing, although his mother had done her best for him. He now had two children and after his release from prison, had developed a creditable football career and had coached other teams, including Father Riley’s group. He saw no future in violence.
115. While the intelligence reports painted a bad picture of him, they were nothing but gossip from people who dislike the family, but the police believed it.
116. He had lied to his probation officer about being unemployed, because he had been earning wages in cash from his uncle, who did not give him pay slips. He had held other jobs in which he had paid tax.
117. His partner said that the episode at the 7-11 was not an assault but that the applicant had just pushed her. It was just “a domestic”, but the police had tried to make it into a breaking and entering case.
118. He had pleaded not guilty to the affray charges relating to the brawl at the Smithfield RSL on 6 June 2008. At the time of the brawl he was outside because he was not feeling well. Some Gypsy Jokers gang members wearing club colours and had manhandled the doorman. Shortly afterwards, the applicant returned and walked into the middle of the fracas whereupon he tried to break it up. His plea of not guilty was likely to be successful. The RSL episode did not constitute re-offending as it was a case of self-defence, and the 7-11 was not really a charge at all, as the parties had left together.
119. The applicant has matured and now realises that family is all. Before being detained he was working hard at an arduous job dismantling old railway sleepers. He would have no reason to do it if he were dealing drugs.
120. Confirming the decision would have no deterrent value because deportation was not something new. The case itself, however, would have a deterrent value.
121. The applicant had learned an important lesson and would not re-offend. He would make us proud.
122. The Airds community supports him, not just his friends, neighbours and employer. Mr Rajab did not believe that the community wanted him to leave, other than a few bad apples, probably complaining on racial grounds. He had a job waiting for him.
123. His character witnesses had given evidence on oath. If they did not know about his criminal history, that was because he does not boast about it. He is really “a teddy bear”.
124. The applicant’s partner is Tongan, not a New Zealander, and has no ties to New Zealand. Their daughters wished to be raised as Australians. If removed from Australia, the applicant would probably return to Samoa, which would be unfair to the children as the education facilities were not comparable and work opportunities were limited.
125. In reply Ms Quinn pointed out that Mr Rajab’s submissions concerning the Smithfield RSL incident really amounted to giving evidence, not making submissions. I said I agreed but that I had decided to treat Mr Rajab’s account purely as a possible explanation of the applicant’s involvement rather than as evidence.
Application of the Law and Findings of Fact
126. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and (7), the applicant passes the character test having regard to his substantial criminal record.
127. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
128. In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(7), as he was sentenced to 20 months' imprisonment with a 12-month non-parole period for assault occasioning actual bodily harm on 1 August 2005.
129. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not 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.
…
130. Paragraph 2.3 sets out the primary considerations:
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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
©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.
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Paragraph 2.4 explains:
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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.
…
131. 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.
132. 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”.
Protection of the Australian Community
133. 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 as a juvenile of assault occasioning actual bodily harm, aggravated robbery, affray, common assault, robbery in company and other offences. As an adult his convictions are for two counts of assault occasioning actual bodily harm (1 August 2005) and assaulting an officer in the execution of his or her duty and stalking or intimidating with intent to cause fear of physical or mental harm (4 November 2005).
134. His most serious conviction is for the two counts of assault occasioning actual bodily harm (charge number H20401021). The applicant pleaded guilty at the earliest opportunity and received sentencing credit for it. Initially, however, when police spoke to him about the matter, he claimed that he was not involved in the assault.
135. Sides J of the Campbelltown District Court described the circumstances of the offence:
…
On the evening of 21 October 2003, the victim was gathered, along with a number of other people, on a veranda of a house at 29 Riverside Drive, Airds. At about 9.30 pm the Offender, his brother, and one other person, walked along that street and stopped. The Offender then entered the yard of number 29, went up on to the veranda and commenced a conversation with the victim. He started yelling at and abusing the victim. The victim, at this time, was seated. The Offender punched him to the side of the face. He walked away from the victim, but then returned. Having returned, he grabbled the victim by his shirt, dragged him through a small gate and down a number of steps. He then proceeded to kick the victim about the head and face. The victim attempted to cover up, but the Offender continued to punch and kick him to various parts of his body. He ceased and walked away.
An ambulance was called. It arrived at about 9.50 pm. It was the ambulance officers’ assessment that the victim was not fully conscious and rated him at 8 of the Glasgow Coma Scale. The victim was transported by ambulance to Liverpool Hospital. Upon admission there, it was noted that he had a haematoma on the left side of his forehead, a small laceration to the forehead, and bruising to the back of the neck. The photographs also show bruising around the face, including the eye and one side of the forehead. There were no fractures to his extremities. He was placed under the care of a surgeon. A CT scan revealed a large scalp haematoma, a small left frontal extra-dural haematoma with no mid-line shift. An intra-cranial pressure monitor was inserted during an operation on the 22nd, and the victim was then placed in intensive care. He was not discharged from hospital until 28 October that year. He was instructed to undergo four further weeks rehabilitation.
The victim cannot remember anything after a certain point that evening. He now claims that he is on a disability pension as a consequence of his injuries. He is not allowed to work any more as he could fall asleep. This also prevent his from driving.
When the police ultimately spoke to the Offender about the matter, he claimed that he was not involved in the assault.
…
136. His Honour stressed that the offence “involved unprovoked violence”. He continued:
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The assault was serious and prolonged. The injuries sustained were towards the upper end of actual bodily harm (G p73).
…
137. The applicant admitted most of the facts as stated. He claimed, however, that the victim had stood up and delivered the first punch, but that he had not told the police or the court anything about that because the victim was a friend. That explanation is inconsistent with a clear finding by his Honour, however, and cannot be accepted. Even if it could, it could not excuse or minimise a savage and prolonged assault resulting in serious injuries and apparently permanent disability.
138. As the applicant claims, no doubt rightly, to be a boxer and footballer, any assaults he commits by punching or kicking are likely to inflict serious injury. When he was only 13 he assaulted a 38 year-old man, causing extensive facial fractures and fractured ribs. The victim had to be treated in intensive care (Profile, part Exhibit R3, p6).
139. 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]). Sides J took the applicant's age into account. Mr Rajab submitted that when the applicant came to Australia at the age of 12 he had never been in any trouble but soon offended because of peer pressure and the effects of alcohol. He had been exploited by bullies. Taking those matters into account, I nevertheless find that the applicant’s record is very serious.
140. The next issue for the tribunal to consider is the risk of recidivism. The tribunal is required by paragraph 2.10 of Direction No 21 to note the government’s view that a person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. A non-citizen with several previous convictions in Australia should be considered as having a higher risk in light of past behaviour. The applicant has several previous convictions as an adult and several more as a juvenile.
141. 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]).
142. The applicant formally admits his criminal history, but when it comes to specific circumstances he denies the most serious or revealing aspects of almost all his offences:
(a)In relation to his conviction on 18 December 2000 for assault occasioning actual bodily harm, he denied telling the victim that his mother was a dealer and that the victim owed her money that the applicant was there to collect (Exhibit R4, p620);
(b)In relation to his convictions for assault occasioning actual bodily harm on 1 August 2005, he admitted that he had probably asked police for the addresses of witnesses “to talk to them about this” (Exhibit R4, p98) but claimed that he had no idea why he had asked for them, and then said that he had merely wanted to talk to them. He denied the obvious inference that he proposed to threaten or intimidate them. He then appeared to deny that he had actually said it, asking if there was any proof that he had, such as a tape;
(c)As was noted above, he claimed that the assault occasioning actual bodily harm for which he was sentenced on 1 August 2005 was not, as Sides J had found, unprovoked, but that the victim had stood up and delivered the first punch;
(d)In relation to the convictions for assaulting an officer and stalking or intimidating on 4 November 2005, the applicant claimed he entered Charmaine Baker’s house in an endeavour to stop violence by others, which conflicts with the magistrate’s finding at the trial that the occupants had been quietly watching television at the time (Exhibit R4, pp754-757). He also denied boasting that he ruled Airds, or that it was his place, or that he had warned off the police in coarse terms or that he had threatened to slit the throat of one of the occupants. Instead he claimed that he admitted saying those things only because his lawyer had told him to, an improbable claim; and
(e)He denied most aspects of the assault on his partner at the 7-11 convenience store, saying that he had simply asked her for her purse and walked out, throwing a packet of potato chips in the process. At the same time, he admitted pushing the victim but asserted that his “little shove” was not an assault. Again, he claimed that he had pleaded guilty to the charge because his lawyer had told him to, another implausible claim. The fact sheet notes that the CCTV footage clearly showed the applicant committing the offence, presumably implying that the full facts statement was based on, or consistent with, the CCTV recording.
143. The applicant also makes much of the fact that he has never been convicted of a drug offence and claims that he has never touched drugs or had anything to do with them. He had, however, been convicted of intimidation on the basis that he had told the victim he was collecting a debt for his mother, who was a dealer. A desire to distance himself in every way from the drug traffic may explain his denial that he knew Michael Chmielewski or had ever visited his premises. An intelligence report dated 4 December 2006 reported that Chmielewski was supplying a variety of drugs from his Claymore address, which was regularly visited by the applicant, who collected money and drugs from him.
144. The applicant’s denial of any knowledge of Chmielewski is quite implausible given the fact that Michael Chmielewski wrote a letter of support for him (part Exhibit A2) stating that he had known the applicant for four years, that he was a good family man and had always been there for Mr Chmielewski and his family. Kirsty Chmielewski also wrote a reference stating that she had known the applicant for four years. Mr Rajab's submission that the applicant may simply not have known Mr Chmielewski’s surname is for those reasons unconvincing.
145. The applicant also denies any involvement with the Rebels OMCG or any other criminal gangs, despite witness reports and his earlier specific admissions to police on that subject. His active involvement in the brawl with the Gypsy Jokers group at the Smithfield RSL and his ostentatious trampling of a jacket forcibly taken from his victim by the man in the white T-shirt (and which may be presumed to be a Gypsy Jokers jacket), suggests more than a casual interest in OMCG affairs.
146. The applicant also minimised the 2005 assault occasioning actual bodily harm on the basis that it was in the past and he had served his time. The matter is not in the past for the victim, however, who is now disabled, possibly permanently, and unable to work or drive. The applicant was on a bond for robbery in company at the time of that offence (G p72).
147. The tendency to minimise his offending behaviour has been apparent for some years. The psychologist in her report in November 2000 noted that “Prince’s aggressive behaviour is concerning because he minimises its impact and does not appear willing to address his violence”. She also reported that he appeared proud of his criminal conduct and of the increasing fear of him that was reported within the community (Exhibit R4, pp632, 633).
148. Also relevant to the risk of recidivism are the police intelligence reports. They do not constitute direct evidence in these proceedings, but many report matters witnessed by police or confirmed in other ways. While they must be regarded as of somewhat uneven reliability, and one cannot exclude the possibility of maliciously false allegations, they cannot be dismissed, as Mr Rajab urged, as mere gossip.
149. The credibility of the picture they create increases with the number and recency of the reports. The applicant is the subject of 77 reports detailing alleged drug dealing, violence (including firearms violence), robbery, intimidation, home invasion, child sexual abuse, gang crime, receiving stolen goods, breaking and entering and public order offences. As Senior Constable Alavoine pointed out, the profile contains 23 reports for 2008 alone, giving details of 11, and shows a pattern of increasing reports over a period. Several intelligence reports relate to offences said to have occurred after service of the s 501 documents (Profile, part Exhibit R3, p6). The intimidation of victims and witnesses, impeding police investigation and prosecution, is a recurring theme.
150. He said that while in jail in 2005 he had successfully completed alcohol and violence prevention courses, although there is no other evidence to support that claim and he did not produce the usual certificates of completion. In any event, the assault on his partner at the 7-11, which involved both intoxication and violence, occurred after those courses, indeed on the day after he had received a favourable parole report. His involvement in the Smithfield RSL brawl took place when he was still on a bond imposed in respect of the 7-11 offence.
151. He had told the psychologist in November 2000 that he could not give up alcohol, and his subsequent conduct bears that out. In a probation and parole case plan report interview on 22 May 2008 he admitted that “at times” he became intoxicated to the extent of suffering amnesia (Exhibit R4, p6). He repeatedly claimed that his behaviour and outlook had changed since the birth of his daughters, such that he was no longer the same person, but his main convictions in 2005 related to offences committed after both girls had been born.
152. He admitted making inconsistent statements to the probation service about his employment and his family sources of income. Much of his evidence on material matters before the tribunal was implausible.
153. He expresses remorse for his lawbreaking, but he has done so before (eg, in November 2000 – Exhibit R4, p628) and yet re-offended. Sides J commented that “It is difficult to be overly optimistic so far as his prospects of rehabilitation are concerned” (G p72). Whatever his subjective intentions may be, he seems unable or unwilling to curb his criminal behaviour.
154. On the basis of all the evidence I find the applicant to be at high risk of re-offending.
155. 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.
156. 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.
157. Ms Quinn relied on Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 at [31] and Re Rauhina and Minister for Immigration and Citizenship [2007] AATA 1359 at [74] as underlining the importance of general deterrence.
158. Mr Rajab submitted that affirming the decision would have no deterrent value because there was nothing new about deportation. Detective Inspector Galea’s evidence painted a different picture, however.
159. He said people had less fear of violence committed or instigated by the applicant and wanted him removed permanently. Jail sentences were only periodic and the offender would return to the area after a relatively short period and might resume previous criminal activities. Deportation, however, would send a deterrent message to the whole New South Wales non-citizen criminal population and would improve the community perception of safety.
160. Mr Rajab submitted that it was “only a few bad apples” who wanted the applicant removed, and their wishes were probably based on racial grounds.
161. While the applicant’s supporting witnesses and those who wrote character references or signed the petition opposed visa cancellation, their evidence displayed little awareness of his criminal history or of its seriousness.
162. While general deterrence cannot be a decisive, or even a substantial, consideration in such cases, it is a factor that must be taken into account.
Expectations of the Australian Community
163. 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.
…
164. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical, economic and other reasons for that position have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
165. In Al-Kateb v Godwin (2004) 219 CLR 562 at 659, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (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).
166. 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).
167. 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)).
168. The respondent contended that the expectations of the Australian community are that visa holders will not engage in criminal behaviour. In Re Rivera and Minister for Immigration and Multicultural Affairs [2002] AATA 261 at [74], Deputy President Purvis sated that:
… There is a clear community expectation that where perpetrators of crimes abhorrent to the community are non-citizens they may well not be allowed to remain in the community. As was submitted on behalf of the Respondent the repugnant nature of the Applicant’s offences coupled with the risk of recidivism leads to a situation that warrants deportation.
…
169. Ms Quinn further submitted that community expectations in this case were encapsulated in the report by Senior Constable Ray on 28 November 2008 that a community source had approached him in the company of two friends and congratulated the police on the great job they had done in taking the applicant out of circulation. “We can finally come to the pub and not feel scared anymore that we are going to get beaten up by him” (Exhibit R1, para 41; annexure p90).
170. The wider community could well take a similar view. It would be balanced, however, by concern for the best interests of the children, which are discussed below.
171. In my view the community would on balance expect that the visa of a person with such a serious and sustained criminal record, is assessed at being at high risk of re-offending and who shows little evidence of stable rehabilitation should be cancelled.
The Best Interests of the Child
172. 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) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (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)).
173. The applicant has two children, Silika, aged six, and Janiece, aged four. They live with their mother, the applicant’s de facto partner, Ms Elisiva Faletau and there is no reason to think that they are anything other than well cared for. The applicant said they are of Tongan/Samoan nationality (G p86), but they are probably both Australian citizens.
174. The applicant has a close relationship with his daughters but it is not clear how much time he has spent with them. On his evidence, he did not live with Ms Faletau until 2006, having previously been with his mother when he was not in custody.
175. The cancellation of the applicant’s visa would have the immediate effect that he would be separated from Silika and Janiece. Ms Faletau would, however, have the option of taking them to live in New Zealand with him.
176. Ms Faletau said she would not join the applicant in New Zealand if his visa were cancelled as she has no home or family there. She is of Tongan background but has never left Australia. She added that both she and the applicant would have to work and there would be no-one to mind the children.
177. Mr Rajab submitted that if his visa were cancelled, the applicant would probably move to Samoa (where his father and a brother live), and that would be unfair to the children as the educational facilities would not equal those in Australia. The applicant himself, however, did not suggest that he would move to Samoa, although the matter was not put to him.
178. The applicant said he has two grandparents (G p88) and one brother living in New Zealand, so the couple would not be without family support there. There is no obstacle to Ms Faletau and the children moving to New Zealand, although clearly Ms Faletau would prefer not to do so. There would be no language problem and only minor cultural differences.
179. Further, the tribunal has always proceeded on the unchallenged basis that New Zealand’s health, education and welfare services are comparable with those in Australia: Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91 at [91]; Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575 at [72]; Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678 at [126].
180. Ms Faletau stated that Silika had for a time refused to attend school because she feared being teased about her father, whose case has received wide publicity. If she were to join her father in New Zealand, that sensitve matter would presumably be removed.
181. Silika and Janiece are quite young and should be able to adapt to New Zealand life without difficulty. Nevertheless, on balance I find that the best interests of Silika and Janiece weigh in favour of not cancelling the applicant’s visa, although not as heavily as might otherwise be the case.
182. The applicant has two nieces and a nephew in Australia, his brother Andrew's children, but nowhere in his evidence does he claim to be in a close relationship with them such that their interests would need to be taken into account under this consideration.
183. While bearing in mind the best interests of Silika and Janiece, it should be noted that in cases where there has been very serious offending behaviour and a high risk of recidivism, the tribunal has repeatedly held that community expectations have outweighed the best interests of the child and other considerations: Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617; Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766; Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828; Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240; Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65.
Other considerations
184. 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.
185. The applicant has no business or similar ties to Australia that would be disrupted by visa cancellation. He was determined to have failed the character test in 2007 and was sent a warning letter to that effect which was returned unclaimed. The applicant has thus not previously been explicitly warned of the possibility of visa cancellation, although it is not clear whether he was ever sent a notice of intention to consider cancellation in connection with the 2007 warning.
186. Most of the applicant’s family now live in Australia and they could be expected to suffer some emotional hardship if he were removed to New Zealand, although they could remain in contact through visits, telephone and the internet.
187. The applicant has been in a de facto relationship with Ms Elisiva Faletau since 2001. He believes her to be of Tongan nationality (G p86), but she states, no doubt correctly, that she is an Australian-born citizen of this country and has never been overseas. She has considered whether she would move to New Zealand to be with the applicant but says she could not do so because she has no home or family there and believes the opportunities are better in Australia.
188. Nevertheless, it would remain a possible choice for her, although no doubt a difficult one. As the applicant has two grandparents and a brother in New Zealand, the couple would not be devoid of family support. She would face no language problem and only minor cultural adjustments. There is no reason to doubt that she has been aware of his criminal history since the beginning of their relationship in 2001.
189. There is some fragmentary evidence of rehabilitation. He has played an active part in working with young people, coaching sporting teams, including those in Father Riley’s youth group. He was working at the time of his detention and would be able to resume his prior position if released.
190. It appears that he subjectively believes that he has turned his life around since his daughters were born (or alternatively since he met his partner in 2001), and has persuaded Ms Faletau and his friends of that. But he has continued to incur convictions, including some of his most serious ones, and attract adverse intelligence reports since their birth.
191. He has been offered many opportunities to renounce crime but has invariably relapsed. In 2005 he committed assault occasioning actual bodily harm while on a bond for robbery in company; his involvement in the Smithfield RSL brawl occurred while he was on a bond and a victim protection order for his assault on Ms Faletau at the 7-11. The police profile of him shows 23 adverse reports for 2008 alone, including some after receipt of the notice of intention to consider cancellation. The evidence shows that he has been involved in criminal activity for almost his entire time in Australia.
192. In his various positions he has accumulated some useful work skills, which would avail him in either Australia or New Zealand. He does not appear to have any special compassionate claims needing to be taken into account.
193. As was noted above, in a number of decisions the tribunal has held that in cases of very serious offending and a high recidivism risk, community protection and expectations have outweighed the best interests of the child and the other considerations. This is such a case.
194. The decision under review is affirmed.
I certify that the 194 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ……………………[sgd]………………………………..
Renee Wallace, Associate
Date/s of Hearing: 29 and 30 January 2009
Date of Decision: 6 February 2009
Solicitor for the Applicant: Mr N Rajab
Solicitor for the Respondent: Ms T Quinn & Mr L Leerdam, DLA Phillips Fox
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