Claude Tekawa and Minister for Immigration and Citizenship

[2013] AATA 344

[2013] AATA  344

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1002
Re	Claude Tekawa
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	27 May 2013
Place	Brisbane

The decision under review is affirmed.

..........................[SGD].........................................

Senior Member Bernard J McCabe

CATCHWORDS

VISA CANCELLATION – Character test – Primary considerations – Protection of the Australian community – Issues with summons documents – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499 and 501

Administrative Appeals Tribunal Act 1975 (Cth) s 61

SECONDARY MATERIALS

Direction 55 – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. The Minister for Immigration and Citizenship has cancelled the visa of Mr Claude Tekawa on character grounds pursuant to s 501 of the Migration Act 1958. The discretion to cancel the visa was enlivened after Mr Tekawa, a New Zealand citizen, was convicted of rape and sentenced to six years in prison in 2008. Mr Tekawa has asked the Tribunal to reconsider the cancellation decision.

2. There is no doubt the Minister has the power to cancel the visa on character grounds. Mr Tekawa does not pass the character test because he has a substantial criminal record within the meaning of the section: ss 501(6) and (7). The focus of these proceedings is on whether the discretion to cancel should be exercised.

3. I am required to have regard to the Minister's written direction in the course of my deliberations: s 499. The current written direction is titled "Direction 55 – Visa refusal and cancellation under s 501". It came into force on 1 September 2012. It replaces an earlier direction, Direction 41, that was in place at the time of the original cancellation. Direction 55 refers to four primary considerations. It also permits me to have regard to other considerations but says they will ordinarily be of lesser weight than the primary considerations.

4. My approach to the nominated considerations must be informed by the objectives, general guidance and principles set out in clause 6 of the Direction.

   Evidentiary issues

5. My approach to this task has been complicated by the state of the evidence. An applicant in Mr Tekawa's position has limited capacity to assist in his own application. He is incarcerated and indigent, and he is given very little time to prepare because of the strict timelines imposed by the legislation. He was not represented at the hearing, and he did not have the means or experience to seek out a great deal of evidence in support of his own case. That is hardly unusual, but it necessarily places a greater burden on the respondent to discharge its statutory obligation to assist the Tribunal to reach the correct or preferable decision. In the course of discharging that obligation the respondent summonsed documents from the police and other state government departments. For example, a set of documents was summonsed from Queensland Health. The summons is dated 20 March 2013 and required that documents be produced in the Tribunal by 29 April 2013. Those documents, or some of them, arrived at the Tribunal on the afternoon of 21 May, after the hearing concluded. As it happens, the documents in question were not critical to the outcome of the case: there were some medical records but no psychological reports that would shed light on the questions I am required to answer. But that is beside the point. The documents should have been delivered in a timely way in response to the summons. A summons is not an informal invitation to provide a selection of documents at the convenience of the person to whom the summons is directed. Everyone – including state government instrumentalities – is obliged by law to comply with a summons issued by the Tribunal.

   Primary consideration one: protection of the Australian community

6. Clause 9.1 of the Direction refers to the need to protect the Australian community. There are two limbs to consider: the nature and seriousness of the person's conduct and the risk to the Australian community should the person offend again or engage in other serious conduct.

7. I will deal with the seriousness of the offence first. Mr Tekawa was convicted of rape in June 2008 after a guilty plea. Rape is a very serious offence. It is explicitly recognised as such in clause 9.1.1(1)(a) of the Direction. The sentencing judge also referred to the seriousness of the offence in his remarks recorded at p 66 of exhibit one. The sentence of six years imprisonment reflects those remarks: it confirms the offence as a serious one, albeit that it was not in the worst category of sexual offending. The judge noted there was no violence or weapon used in the offence, and there were no injuries, and the applicant did not break into the victim's home. But the applicant did take advantage of a seriously intoxicated woman. The sentencing judge appeared to accept there was no premeditation, although in his evidence at the Tribunal hearing Mr Tekawa acknowledged he took the woman back to his nearby apartment once he realised the state she was in with the express intention of having sex with her.

8. The respondent said the evidence established the offence was committed against a vulnerable person, which is an aggravating factor referred to in clause 9.1.1(1)(b). The victim was certainly vulnerable in the sense she was completely intoxicated, although it is unclear whether she was one of the "vulnerable members of the community (such as minors, the elderly and the disabled)" referred to in the Direction who are vulnerable because of age or infirmity. For the purposes of this application, I will assume in the applicant’s favour that the victim was not a vulnerable person in the sense intended by the Direction.

9. The offence was compounded by the applicant’s denials to police. Mr Tekawa did not admit what he had done and plead guilty until the evidence against him was overwhelming.

10. The applicant has committed other criminal offences. He was convicted of supplying dangerous drugs in 2006 (there was a total of four charges) and there are some traffic matters that are of limited weight. Mr Tekawa acknowledged he had been dealing in drugs for financial gain to supplement his income from other lawful activities. The rape was committed while he was on bail in relation to the drug offences. That is a matter of concern: it shows he was prepared to engage in conduct that he knew was illegal even though he was already in trouble with the law. It is also a matter of concern that his offending appeared to become more serious over time – although I acknowledge his criminal record is not extensive, and he does not have any record in New Zealand.

11. Mr Tekawa denied using drugs or alcohol. That evidence was challenged by the respondent. The respondent's representative noted Mr Tekawa is recorded as admitting to drug and alcohol use in the Sexual Offending Programs – Preparatory Program Completion Report that was obtained from the Department of Corrective Services (exhibit two, p 213ff). Mr Tekawa denied making that admission. There were a number of other admissions attributed to Mr Tekawa in documents generated in connection with the sexual offenders' programs he undertook. The respondent said these admissions should be relied upon because they are objective records of conversations Mr Tekawa had with professional officers who conducted the programs. Mr Tekawa was asked in particular about a statement appearing in the Sexual Offending Program Assessment form (exhibit two, p 202). The interviewer notes:

    The offender reported he has had sexual relations with women who were intoxicated beyond the point of being able to give inform [sic] consent to sexual intercourse.

12. The applicant agreed he admitted he regularly had drunken sex with a diverse range of female partners but denied he told the interviewer any of the other partners were so drunk as to be unable to consent.

13. Ordinarily, when a report or other document prepared by an expert witness is tendered in evidence and is subject to challenge, the expert should be asked to give evidence to explain what he or she said. The expert who completed the assessment form – I assume it was an expert, although I was not told anything about the person's qualifications or experience – was not called to give evidence.  I would have asked the author about the extent to which comments attributed to Mr Tekawa are direct quotes, or mixed statements of fact (ie things he actually said) and opinion, or assumptions, or conclusions supplied by the author in response to what was said. I would also ask about the questions that were put to Mr Tekawa that elicited the answers, and the nature of the interview. Given Mr Tekawa struck me as an honest witness, I am not inclined to accept the accuracy of everything that was said in the document in the absence of an opportunity to talk to its author.

14. In summary, I accept the rape committed by Mr Tekawa was very serious. The drug dealing was less serious, although still problematic. The traffic offences have little weight. I am not satisfied Mr Tekawa's other conduct discussed during the course of cross-examination is relevant for present purposes. The seriousness of the offence certainly counts against the exercise of the discretion. In reaching that view, I am conscious of clause 6.3(2) of the Direction, which says:

    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

15. I turn then to the question of risk – the risk that Mr Tekawa will commit further offences or engage in further bad behaviour. Clause 9.1.2 of the Direction and the principles referred to in clause 6.3 are clear: the community is entitled to be more risk averse in the face of more serious conduct. It is accepted that even a relatively low risk of serious harm might be unacceptable whereas a higher risk of minor offences might be tolerated. This is a case where an offender has engaged in relatively serious behaviour (the rape, most obviously), which means the community is likely to be less tolerant of risk.

16. The evidence available to me suggests there is a relatively low risk that Mr Tekawa will commit another sexual offence. I rely in particular on the STATIC-99 report referred to in the summons material provided by the Department of Corrective Services at exhibit two, p 208. That report says Mr Tekawa is in the low risk category. [1]

    [1] While I have raised questions about the content of some of the other documents provided in connection with the assessment process, I note the formal recommendations included in the summons documents (exhibit two, pp 206-209) say the STATIC-99 instrument is designed to predict sexual and violent recidivism for sexual offenders, while the other documents (like the assessment document, that I have already discussed) are not intended to be used for predictive purposes.  

17. There are other reasons to accept this assessment. The report was prepared after Mr Tekawa completed an extensive program in prison designed for sexual offenders. I note he completed other general education programs whilst in gaol. The summons documents also confirm he had a generally good record of behaviour, and he has worked as the prison librarian. He also gave evidence of his role in organising a cultural day and a Shakespearian performance. That is encouraging, although good behaviour in the controlled environment of a prison is one thing; behaviour when faced with temptation in the outside world is another.

18. The applicant is an able-bodied man with experience in a variety of occupations. He appears to be intelligent. There is no reason to doubt he would be able to get work in Australia or New Zealand after his release.

19. Mr Tekawa is genuinely remorseful for his behaviour. He appeared to be sincere in his desire to leave behind a troubled period in his life. He has rediscovered his religious beliefs. There was encouraging evidence from the prison chaplain and from Mr Corino, a prison fellowship visitor to the gaol who has been seeing Mr Tekawa regularly for over three years. The applicant had warm support from his parents. His mother (who travelled with Mr Tekawa's father from the Gold Coast for the hearing in Townsville) gave evidence of her commitment to her son.

20. The respondent pointed out Mr Tekawa had religious convictions and the support of his loving family and a job before he got into trouble in 2006. There must be some question over whether he will stay the course if he were to be released into the Australian community.

21. I am satisfied, in light of the evidence about his rehabilitation and other matters, that there is a low risk of Mr Tekawa committing another sexual offence, albeit that the consequences of such an offence would be very severe. The genuine efforts he has made to rehabilitate himself, his employment prospects, his religious convictions and the support of his family suggest there is a low risk of him committing other offences or engaging in other unacceptable behaviour. Even so, there is still a risk – especially a risk of serious sexual offences – which must count against him.

22. In all the circumstances, I think the factors referred to in clause 9.1 of the Direction count in favour of cancelling the applicant's visa.

    Primary consideration two: strength, duration and nature of the applicant's ties to Australia

23. Mr Tekawa has not been a long-term resident of this country. He came here in 2005, when he was 32 years of age. He was an adult of mature years by that point. He was not a callow youth. He began offending in 2006. He has been in gaol since 2008. He made a limited contribution to the community while he was at large; he has not been in a position to make a contribution to the community or his family since he has been incarcerated.

24. The applicant is a single man. He has no children. His parents and brother and sister reside in Australia. He has maintained regular phone contact with his family members while in gaol. I was provided with a statement from his brother and I heard evidence from his mother, who also provided a statement. I accept he has close ties with immediate family members. I am not aware of close ties with anyone else, nor am I aware of any social or employment links with this country.

25. This consideration must count against the applicant, notwithstanding his family ties here.

    Primary consideration three: the best interests of children

26. The applicant is a single man and he does not have any children of his own. There is no evidence to suggest cancellation would have any effect on the interests of any child. This consideration does not assist the applicant.

    Primary consideration four: international non-refoulement obligations

27. There is no evidence that any of Australia's non-refoulement obligations are engaged. This consideration does not assist the applicant

    Other considerations

28. The Direction permits me to consider a range of other matters that might be relevant to the question of whether the applicant's visa should be cancelled. These considerations are generally of less weight than the primary considerations.

29. I accept cancellation would impact on the applicant's family, who would experience emotional distress at the loss of their son and brother. That much was clear from the evidence provided by the applicant's mother and brother. None of the applicant's family members is dependent on the applicant for support of any kind, and they have all been deprived of his presence for some time while he has served his prison sentence. Even so, this consideration counts in the applicant's favour.

30. The applicant does not have any business interests in Australia that will be affected by his departure, and his departure would not impact on the business interests of anyone else. This consideration does not assist the applicant.

31. There was no evidence provided of the likely reaction of any member of the Australian community should the applicant be permitted to stay. One suspects the victim and her family might have an adverse reaction, but in the absence of evidence it is difficult to say more. I am not satisfied this consideration counts strongly against the applicant, and probably should not count at all.

32. There is no reason to believe Mr Tekawa would have difficulty re-establishing his life in New Zealand if required to return there. He only left his home in Wellington in 2005. I accept he is not close to his extended family, but he has reasonable employment prospects. He is also in reasonable health. (He suffers from epilepsy but it is stabilised by medication and he would be able to continue his treatment in New Zealand.) He is 40 years of age and does not face language or cultural barriers. This consideration does not assist the applicant.

    Conclusion

33. During the course of the hearing, I told Mr Tekawa this process was not about punishing him for his offences. That is the job of the courts and the Department of Corrective Services. I do not ask whether he deserves to have his visa cancelled, or whether I should show mercy. This process is quite different. It is primarily about protecting the Australian community from non-citizens who fail a character test. The process requires a hard-headed assessment of risk and other matters referred to in the Direction. While the Tribunal is not blind to the real consequences for the applicant and his family if his visa is cancelled, I must weigh up all the matters in the Direction, with particular emphasis on the primary considerations.

34. Two of the primary considerations weigh in favour of cancellation. The other two are of no relevance. Several of the other considerations weigh marginally against cancellation. On balance, I am satisfied the visa should be cancelled – particularly in light of the seriousness of the offence and the (admittedly low) risk of re-offending. In those circumstances, the decision under review must be affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  27 May 2013

Date of hearing	21 May 2013
Applicant	In person
Solicitors for the Respondent	M. Kochardy