Confidential and Minister for Immigration and Citizenship
[2013] AATA 237
•19 April 2013
[2013] AATA 237
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0544
Re
Confidential
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 19 April 2013 Place Melbourne The Tribunal affirms the decision of a delegate of the Minister for Immigration and Citizenship to cancel the applicant's Class BQ Subclass 139 Skilled – Designated Area Sponsored visa on 23 January 2013.
....[sgd Egon Fice]....................................................................
Egon Fice, Senior Member
IMMIGRATION & CITIZENSHIP – visa cancellation under s 501(2) of the Migration Act 1958 (Cth) – the applicant does not pass the character test – primary considerations – other considerations – protection of the Australian community – risk to the Australian community should the applicant re-offend – strength, duration and nature of ties to Australia – International non-refoulment obligations – substantial criminal record – criminally negligent manslaughter – evidence of a history of violent behaviour and deceit
Migration Act 1958 (Cth) ss 36, 499, 500, 501
Bugmy v The Queen (1990) 169 CLR 525
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Power v The Queen (1974) 131 CLR 623
Direction No 55 - Visa Refusal and cancellation under s 501
Edney R and Bagaric M, Australian Sentencing: Principles and Practice (Cambridge University Press, 2007)
Nevotti J.R, The Case Against the HCR-20 (2011)
REASONS FOR DECISION
Egon Fice, Senior Member
19 April 2013
The applicant is a Fijian citizen. He is 30 years of age. The applicant first arrived in Australia on 19 November 1995 on a Class TR Subclass 676 Tourist visa. He departed Australia on this visa on 28 January 1996. On 2 June 2003 the applicant was granted a Class BQ Subclass 139 Skilled – Designated Area Sponsored visa which he held until that visa was cancelled by a delegate of the Minister for Immigration and Citizenship (the Minister) on 23 January 2013. The applicant was notified of the cancellation on
30 January 2013.
The applicant commenced to reside permanently in Australia under his Subclass 139 visa on 2 November 2003. He was then 21 years of age. Although the applicant returned to Fiji on five occasions between 2003 and 2006, those trips were of short duration.
On 4 December 2007 the applicant pleaded guilty in the Supreme Court of Victoria to one count of criminally negligent manslaughter. On 13 February 2008 Teague J sentenced the applicant to imprisonment for ten years with a non-parole period of seven years. The applicant appealed the sentence and on 17 March 2009 the Supreme Court of Victoria Court of Appeal reduced the applicant's sentence to 8 years imprisonment with a non-parole period of five years and six months.
On 15 November 2012 the Minister issued to the applicant a Notice of Intention to Consider Cancellation under Subsection 501 (2) of the Migration Act 1958 (Migration Act). After considering the applicant's response, on 30 January 2013 a delegate of the Minister notified the applicant that he had cancelled his visa on the grounds that the Minister reasonably suspected he did not pass the character test.
Section 501 (6) sets out the circumstances under which a person does not pass the character test for the purposes of the Migration Act. Included amongst those circumstances is where a person has a substantial criminal record as that expression is defined in s. 501 (7). Section 501 (7) provides that, amongst other things, a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
The applicant lodged an application with the Tribunal on 6 February 2013 seeking a review of the decision of a delegate of the Minister to cancel his visa.
The applicant accepted that he did not pass the character test on the ground that he had a substantial criminal record. That enlivened the Minister's discretion to cancel the applicant's visa. Section 501 (2) of the Migration Act provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The only issue which I am required to determine is whether the preferable decision in this matter was the exercise of discretion to cancel the applicant's visa.
EXERCISE OF DISCRETION
Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. A person or body (in this case the Tribunal) must comply with a direction made under s. 499 (1)
(s. 499 (2A)).The current ministerial direction is described as Direction No. 55 which was made by the Minister on 28 July 2012 (the Ministerial Direction). It sets out the objectives in paragraph 6.1 which, relevantly, provides:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3)…
The Ministerial Direction sets out the principles underlying the rationale for exercising the discretion in s. 501 of the Migration Act. Those relevant to this matter are as follows:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) …
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part A of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable. As is stated in paragraph 7 (1)(b) of the Ministerial Direction: This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 8 of the Ministerial Direction provides that I must take into account the primary and other considerations relevant to the individual case, noting there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. The division of considerations for visa holders and visa applicants recognises that a visa applicant should have no expectation that a visa application will be approved. The considerations which I must take into account are divided into primary considerations and other considerations. Paragraphs 8 (4) and (5) provide:
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Paragraph 9 of Part A sets out the primary considerations for visa holders. It provides:
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person's visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person's ties to Australia;
(c) The best interests of minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering protection of the Australian community under paragraph 9.1(1), I am required to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege and confers on non-citizens the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Under paragraph 9.1(2), I am also required to give consideration to:
(a) The nature and seriousness of the person's conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1 sets out factors to which I must have regard when considering the nature and seriousness of the person's criminal offending or other conduct to date. Those relevant to this matter are:
(a) violent and/or sexual crimes are viewed very seriously;
(d) any conduct which forms the basis for a finding that a person does not pass the character test or is not of good character is considered to be serious;
(e) the sentence imposed by the courts for a crime or crimes;
(f) the frequency of the person's offending and whether there is any trend of increasing seriousness; and
(h) whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
In order to properly evaluate the seriousness and nature of the applicant's offending, I need to examine in some detail the circumstances which led to his conviction. This is particularly significant in this case because the applicant was originally charged with murder to which he pleaded not guilty. By the time the matter came on for hearing in the Supreme Court, as result of a plea bargain, the applicant pleaded guilty to manslaughter.
However, in doing so, I must exercise caution. As Fisher and Lockhart JJ said in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, at 358:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.
Davies J, who agreed with the decision of Fisher and Lockhart JJ, gave independent reasons for his decision. His Honour said, at 362 – 363:
In a review by the Administrative Appeals Tribunal of an order for deportation made under either s. 12 or s. 13 of the Migration Act 1958 (Cth) it is not the function of the Tribunal to review the propriety of the relevant conviction. That is the function of the appellate courts.…
But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the circumstances of the crime may or may not be admitted.… If the transcript of the proceedings at the trial or the learned trial judge's summing up or his remarks on sentence are in evidence before the Tribunal, they may be taken as evidence of the matters which they state for s. 33 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal is not bound by the rules of evidence. But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. There may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.
The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and to form its own judgement on all the matters which are relevant to the exercise of the power of deportation. Many of the matters which were an issue before the criminal court will also be either in issue or relevant to matters in issue before the Tribunal. But, because the scope of the inquiry before the Tribunal will ordinarily be much wider than the inquiry before the criminal court, it is likely that the Tribunal will have to examine the criminal activity with eyes different from those of the criminal jury. The total pattern of the deportee's behaviour, including his criminal behaviour, his personality characteristics, the risk of recidivism, the risk of harm to the community should he remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not crime occurred may, in a particular case, be only of limited value.
The Full Court of the Federal Court (Fox, Fisher and Sheppard JJ) in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 referred to Daniele's case with the approval. Furthermore, Fox J said, at 449:
The present case goes further, or, at least, is somewhat different. As Hunter's case [Hunter v Chief Constable of West Midlands [1981] 3 W.L.R. 906] indicates, if there cannot be a direct challenge to a conviction, there cannot be an attack on the findings which support it. If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the conviction. On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine.
Sheppard J added, at 469:
If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of the applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 the Full Court (Branson, Lindgren and Emmett JJ) was required to deal with the situation where the applicant was convicted of manslaughter although charged with murder. The Court said, at 240:
The Tribunal proceeded on the basis that the jury may in fact have convicted on an erroneous assumption, that is, that it was open to it to find that the respondent had inflicted a fatal wound when, according to the Tribunal, it was not. In this way, the Tribunal impugned the conviction.
The Court went on to explain, at 241:
In the course of her sentencing remarks her Honour said that the acquittal of murder and conviction of manslaughter did not sit easily with the evidence, but that she must sentence the respondent "upon the basis of the factual scenario which the jury must have accepted in order to reach its verdict".…
Of course, all this is speculation. But it serves to emphasise the danger of following the course which the Tribunal followed here. The simple fact is that the respondent was convicted of manslaughter on the basis of Wood J's charge to the jury. There must necessarily be a risk if the jury had been charged differently, and in the manner the Tribunal considered was correct, the respondent would have been acquitted. It follows that the Tribunal approached its task on a basis that necessarily impugned the conviction.
In the early hours of 10 June 2006 the applicant was involved in an altercation with the victim, whom he had married on 15 June 2005. As a result of that altercation, the victim died. The applicant was charged with her murder. At the committal hearing which was held on 17 April 2007, the applicant entered a plea of not guilty to murder. The matter came on for hearing in the Supreme Court of Victoria Criminal Jurisdiction on
29 January 2008. By that time, the applicant had accepted a plea bargain and pleaded guilty to criminally negligent manslaughter. His sentence is based on this plea.
Before examining what his Honour Teague J said at the sentencing hearing, it is necessary to examine the circumstances which led to the applicant pleading guilty to manslaughter. That is because it will assist in understanding what his Honour said in the course of sentencing the applicant and it provides a more fulsome account of the applicant's conduct in the early hours of 10 June 2006 and following the death of the victim.
The applicant made a statement to police at 7:41 am on 10 June 2006 at the Narre Warren police station. He signed that statement acknowledging that its contents were true and correct and in the belief that making a false statement in the circumstances exposed him to perjury. The applicant said that he married the victim on 15 June 2005 in Fiji. He said his family was not aware of the marriage at that time but he told them at some time later at the start of 2006. He said that he had known his wife for five years and that she was 19 years of age. He said he met his wife in Fiji and she moved to Australia to live with him on 19 February 2006. He said that he and his wife lived with his family since that time.
The first observation I make is that the applicant’s statement that he and his wife lived with the applicant's family since the victim came to Australia is incorrect. A witness at the committal hearing, who provided a written statement to the police on 17 June 2006 (Ms H), said that in late February 2006 the victim came to stay at the house where she was living with her boyfriend at that time. Also living at that house was a Mr I who was in fact renting that premises. Ms H recalled Mr I telling her boyfriend that a girl was coming to the house and that she was the wife of one of Mr I's mates. She was going to stay for a while and Ms H was told that she was from Fiji. Ms H subsequently introduced herself to the victim and was told that she only planned on staying in the house for a couple of weeks. Ms H said she noticed some rings on a ledge above the sink and asked the victim if she was engaged. Apparently the victim told her that she was engaged and then said that she was actually married but that it was complicated.
I also had in evidence two statutory declarations which appear to have been made in support of the victim's visa application following her marriage to the applicant. Those statutory declarations were purportedly signed by the applicant's mother and father on
26 November 2005. However, the applicant's mother, who gave evidence at the hearing of this matter, said that she had not signed that statutory declaration nor had she ever seen those documents before. Ms K, who signed as a witness to the statutory declarations of the applicant’s parents, also made a statement to the police on 10 August 2006. In her statement Ms K said that the applicant told her he wanted her to sign the documents because he was trying to bring his wife into Australia. She asked the applicant why the persons named in the statutory declarations were not signing them in front of her and she was told that they were working and that they could not be there. She was also told by the applicant that they were his parent's signatures and they were both aware of his marriage. She believed him. She said she had no reason to doubt his story.
In his written statement made at 7:41 am on 10 June 2006, the applicant gave an account of the events leading to the victim’s death which was false. By that date, the victim was living with the applicant's parents. The applicant said there was a dispute about a mobile telephone following which the victim said she was leaving. He said he walked with her out the front door onto the driveway, following her and talking to her. He said he pleaded with her not to leave. According to the applicant, she said that she did not want to stay at his parents’ house because she did not like them. She also said she did not want live with him. He described how the mobile phone was broken and then he said the victim simply walked away from the house and he watched her walk up the road about 10 m away before he went inside. He then said: I am sure and positive that there was no pushing or shoving between [the victim] and I at anytime for the whole day. I did not lose my temper or grab her or intimidate her at any time. I have never assaulted [the victim] in my life.
The applicant said that he then went to his bedroom and stayed for about 10 minutes. He then went outside and came back inside and was standing in the kitchen when his mother walked in and spoke to him. When asked where the victim had gone, the applicant said he didn't know. He said his mother said that they should look for her and he suggested that they wait for 10 minutes in case she came back. The applicant said that his mother got in the car and just before he drove off he thought he saw something, a shadow about 10 to 15 metres away when it moved. He said he had not mentioned that before but just remembered it. He said he and his mother drove around for about 10 or 15 minutes without finding anything. He then said: I knew she wouldn't go far so when we checked the pond near the park we waited a couple of minutes and we didn't find anything. He then described how he went back into the house to retrieve a torch and then walked back outside on the footpath near a bush where he was looking on the left side through trees. He saw a reflection of a shoe. He said he told his mother he thought he saw something and suggested they look further. He then said that he heard a sound in the water like a splashing sound. He said: It was a big splash like someone was running in the water. It was sounded clear and like something big. I got a bit scared, so we went down to see who it was. He then said that after looking around he shined his torch into the water and then saw the victim with her face down in the water. He said that he got scared at the time and wanted to take her out of the water but his mother pulled him back.
This account given by the applicant was a total fabrication.
I also had in evidence the transcript of an interview with police which commenced at
12.22 pm on 10 June 2006. At this interview, the applicant completely changed the statement he had given earlier in the day. While no explanation has been given for changing his statement, I note that in a statement made by Detective Senior Constable Simpfendorfer on 15 August 2006, he referred to being told by a Detective Senior Constable Clover that the applicant’s family had been conveyed to the Narre Warren police station where statements were being obtained. This appeared to have occurred at around 5:30 am on 10 June 2006. At the commencement of the 12:22 pm interview, the applicant was informed that he was not obliged to say or do anything but that anything he said or did may be given in evidence. He was also informed of his rights including the right to communicate with a legal practitioner. It appears that by this time the police suspected the applicant was involved in the death of the victim.
In the course of that interview the applicant gave a very broken and disconnected account of the victim telling the applicant she was leaving, the altercation which occurred between them outside the house on the footpath where she fell and hit her head; the fact that he became scared, not knowing what to do and tried to pull her to the side of the road up to a slope; not wanting any passer-by to see her; returning home and washing his shoes and legs; going back to the place where the victim fell and hit her head, seeing her shoes and handbag and taking them to what he described as the slope where she was. He described putting the victim possibly two feet away from the water (a creek or pond) and then going home to wash his shoes and legs because they were all muddy and black and smelly. He also described his mother coming in after he had cleaned himself up and asking what was happening and he said that he wanted to tell her but he became scared.
That interview was punctuated by a power failure and it subsequently continued at approximately 2:30 pm. He was again taken over what he said earlier in the course of the interview and he described how after the fall, although the victim appeared to be unconscious and was bleeding from the mouth, she was alive because she was shaking. When asked if he tried to help her, the applicant said he didn't touch her. He then described how he dragged the victim over the road up the slope on the grass. The applicant said that he stopped when he was 2 feet away from the water. When he was asked whether he left the victim on her back, his answer was equivocal. He said he noticed she wasn't breathing from her mouth but her stomach or lungs were pumping up and down slowly. At that time the interview was suspended, again due to a power outage.
The interview recommenced at about 4:21 pm. At that time the applicant was told that he was going to be charged with the offence of murder.
Dr David Ranson, a specialist in forensic medicine and pathology, at 8:15 am on 10 June 2006 examined the scene where the victim's body was found. He described the body as laying prone with the feet lying on soft mud amongst the vegetation and the upper part of her trunk, head and arms lying partly within the water. Adjacent to the right foot was a handbag and adjacent to the right hip were two black shoes. Dr Ranson conducted an autopsy commencing at 1 pm on 10 June 2006. In his opinion, the cause of death was: upper airway obstruction in association with head injury.
Dr Ranson was cross-examined at the committal hearing. He described bruising to the back of the victim's head. He said there was no fracture. He said the bruising itself would not kill someone although it may be an indicator of forces which could have effects. When it was put to Dr Ranson that the victim did not drown, he explained that there was no waterlogging of the lungs but that there are a variety of stages in which water may be in the airways and lungs with different effects. He then explained that one might have a situation where water gets into the larynx, the larynx can close off and the person can have what is sometimes called a dry drowning, associated with cardiac arrhythmia or laryngospasm and then you do not see water in the lungs. He agreed that it was not possible to exclude dry drowning in the circumstances of the victim's death. When it was put to Dr Ranson that there was no evidence to indicate the applicant suffered a severe assault, he responded that apart from the major injury to the back of the head and some minor small marks, there was no widespread bruising to the body or abrasions of large areas of the body and things like that. Dr Ranson was also asked in cross-examination and re-examination if he was able to say whether the body was placed by the water’s edge in a face up position, and later somehow, changed to face down. He said he could not comment on that.
The sentencing hearing took place on 29 January 2008. I have set out below the more significant passages from the transcript of that hearing.
Regarding the marriage of the applicant and the victim, and the application for a visa, his Honour said:
You chose to suppress from your family both beforehand, your intention to marry, and afterwards, the fact that you had married. Indeed, it was more than suppression. At all times, you deceived your parents. You portrayed [the victim] to them as simply a girlfriend. You prepared the papers required by the Immigration authorities to apply to get [the victim] a visa to enter Australia from Fiji. An effusive but deceptive reference about you and [the victim] was submitted with those papers. The reference purported to have been prepared and signed by your mother. In fact it was a forgery. Your mother knew nothing of it.
Teague J referred to the victim's arrival in Melbourne in February 2006 and the fact that the applicant chose not to take her to live with his parents. He then said that in the following month, March 2006, problems between the applicant and the victim emerged. He said:
You were seen to inappropriately apply physical force to her. She applied to a Dandenong Support Service for safe accommodation. She applied to the Dandenong Magistrates' Court for an intervention order against you. Shortly after that, you and she did reconcile. You then arranged, representing her as a friend in need of a place to stay, for her to move into your parents' home.
His Honour described the dispute over the mobile telephone and then the altercation which occurred outside the applicant's parents’ home in the following way:
You then pushed her with both hands; that caused her to fall onto the concrete footpath. You heard a noise of her head hitting the footpath. You saw that she was shaking. You got no response when you talked to her. You left her and went to your home. You went back to her. Blood was coming out of her mouth. You chose not to call for help. Instead, you dragged her to the other side of the road. On that side there is a slope. You dragged her down the slope. The slope leads down to a body of still water. You took her close to the water. You left her there.
Of the account given to the police when interviewed, his Honour said:
When the police spoke to you first later that morning, you chose to deceive them. In your final account later that day to the police, you were to say a number of things. Those things cannot, by independent evidence, be shown to be correct, or not to be correct. I am unable to be satisfied beyond reasonable doubt that they are incorrect. Accordingly I sentence you on the basis that they are correct. One of the things you said in your final account was that you initially laid [the victim] on her back about 2 feet from the water. Another was that you noted that she was not breathing from her mouth, but that her stomach or lungs were pumping up and down slowly.
Teague J then described what occurred after the applicant placed the victim near to the water. He said:
You later went back to where you had pushed her causing her to fall. You took from that place her shoes and handbag, and put them next to her. You went home and cleaned up your shoes, which had got muddy. You took the cleaning of the shoes to be a priority. You told your mother that [the victim] had left the home following an argument with you. You said nothing to your mother as to the pushing, the fall, the dragging to the water or [the victim’s] compromised condition. You went out with your mother purporting to look for [the victim]. The body of [the victim] was then found. She was not close to, but face down in the water and substantially submerged.
His Honour said that the victim died from an upper airway obstruction in association with the head injury. He then said this about the applicant's conduct:
From the time you heard the noise of her head hitting the ground after you pushed her, it was obvious that she was in need of medical attention. You should have summoned such attention. You chose not to do so. That choice was grossly negligent. Instead of choosing to get help, you grossly increased the risk of causing an even more serious result. That was because, while aware of her being still unconscious, you dragged her to a position of great danger. You then continued to choose not to seek medical attention. Instead, you aggravated the situation in how you deceived your mother as to what had happened. In my assessment, yours is a particularly serious case of manslaughter, although far from the top end of the scale.
His Honour also referred to a report prepared by Dr Simon Kennedy, a clinical and forensic psychologist, on 20 December 2007 at the request of the applicant's legal counsel and his honour also referred to other information from the brief which was clearly not given to Dr Kennedy at the time of his assessment. In his conclusions, Dr Kennedy said:
The current evaluation indicated that [the applicant] had no psychological difficulties throughout his life. He has sound intellectual functioning and is functioning in the Average range of intelligence. There is no personality difficulties based on the current evaluation which are indicative of predisposing factors for violence. His psychological response is appropriate to the situation and is suffering from an adjustment disorder with mixed anxiety and depressed mood with relatively mild symptoms, secondary to the death of his wife.
Teague J said this about Dr Kennedy's report and the other materials and information from the brief:
You have no prior convictions. More details of your background are contained in two sources which I found quite valuable, but also disturbing. The first is the report of the psychologist, Simon Kennedy. The second is the multiple references placed before me on the plea. Simon Kennedy's opinions would have carried more weight if there had been placed before him and noted in his report, not just your account, but other information from the brief including relevant statements as to the nondisclosure of the marriage, the forged application for the visa, the Dandenong applications and what gave rise to them, and the events immediately preceding the death of [the victim]. The framing of several of the references suggests the writers suffered from a like limited awareness of such matters.
His Honour sentenced the applicant to imprisonment for 10 years and fixed a non-parole period of seven years.
Although the Court of Appeal reduced the applicant's sentence to 8 years imprisonment with a non-parole period of five years and six months, her Honour Dodds-Streeton JA also commented on Dr Kennedy's report. She said:
The effect of Dr Kennedy's report was vitiated by the appellant's total want of frankness as to many material circumstances. Further, although the significance of previous good character in a case of manslaughter by negligence may be debatable, the appellant, while he had no prior convictions, did not demonstrate good character. He had participated in a forgery, deceived his parents and had, almost from the date of her arrival, used inappropriate force toward his wife, causing her to seek refuge in a 'safe house' and obtain an intervention order. His record of interview indicates that he argued with the victim when she attempted to leave the house, threatening to report him to the police. In the context of the offending, he again deceived his mother and the police.
Dodds-Streeton JA also said this about the applicant's conduct:
In the present case, the appellant's conduct towards his injured and vulnerable young wife was, as the respondent submitted, extremely callous. It is not irrelevant that the crime had its genesis in an attempt to maintain control over his wife and to prevent her departure from the house (apparently in order to complain of his conduct to the police). The appellant followed her, pulled her, then pushed her with both hands, causing her to fall to the ground and hit her head. The appellant's subsequent conduct prevented vital medical assistance from reaching his critically injured wife, who was, to his knowledge, unconscious and bleeding. He returned to the waterside from the incident site with the victim's shoes and handbag. He then left her again. He returned to the house from the waterside and washed. The cover up involved an element of calculation and destroyed any possibility that the victim would receive the assistance she desperately required.
There is little further that I can add to what has been said by the Supreme Court and the Court of Appeal about the applicant's callous, brutal and deceitful conduct. I have no doubt that this conduct must be viewed very seriously when considering whether the decision to cancel the applicant's visa was the preferable decision. Although the applicant expressed remorse regarding his conduct, given his deceitful conduct from the very outset of this tragic series of events, I have no confidence whatsoever that his stated remorse is genuine. I have more to say about that below when considering whether the applicant represents an unacceptable risk of harm to anyone in the Australian community.
Risk to the Australian community should the applicant re-offend
Paragraph 9.1.2 of the Ministerial Direction provides that I should have regard to the principle that the Australian community's tolerance to any risk of future harm becomes lower as the seriousness of the potential harm increases. In fact, that paragraph states some conduct and the harm that would be caused if it were repeated is so serious that any risk that it may be repeated may be unacceptable. I am required to have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person re-offending; and
(ii) evidence of rehabilitation achieved by the time the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses is to be undertaken).
It seems to be self-evident that if the applicant should engage in further criminal or serious conduct of the kind for which he was convicted and sentenced, the harm to individuals could be extremely serious. In fact, the applicant's demonstrated propensity for violence, particularly towards somebody that he believed was under his control, is particularly disturbing. Although Dr Kennedy in his report found that the applicant had no personality difficulties indicative of predisposing factors to violence, his history of behaviour towards the victim would suggest otherwise. Dr Kennedy plainly was not aware of this history because, when considering the applicant's mental health, he said there were no personality difficulties evidenced by symptoms which would suggest antisocial or other elements that could be considered important. However, the Supreme Court and the Appeal Court referred briefly to this history. Added to that is the clear propensity of the applicant to be deceitful and untruthful about matters which may be perceived to be adverse to his circumstances. The evidence discloses this to be the case.
In a statutory declaration made by the applicant on 14 December 2012, he made a number of untrue statements with the knowledge that they were untrue, including:
… and the fact that prior to this offence, I had never committed any crime of any nature whatsoever,…
There is absolutely no frequency (sic) of me ever offending anyone again nor will there be any trend of increasing seriousness, as it is not in my character to be violent and that prior to this offence, I have never been involved in any other criminal conduct whatsoever:…
I have never provided false or misleading information to the Department [Department of Immigration and Citizenship],…
… there is absolutely no risk of me ever harassing, molesting, intimidating or stalking another person, as it is not in my nature and that prior to this offence, I have never been involved in any kind of criminal conduct.
The victim's mother provided a victim impact statement statutory declaration for the purposes of the hearing in the Supreme Court on 29 January 2008. In that statement she said: There was a (sic) incident where [the victim] was beaten by [the applicant] and we wanted to get her back to Fiji but they settled and said there was no need. This statement corroborates the evidence of other witnesses who said that the victim had called her sister and mother in Fiji and told them about the applicant's violence towards her.
In his 20 December 2007 report, Dr Kennedy said the applicant told him that after the victim fell and hit her head on the footpath, he moved her onto some grass. Dr Kennedy then recorded: He indicated that he was somewhat reluctant to talk to his mother about the argument. [The applicant] then returned to the place where he had left [the victim] to find she was not there. A search with his family found her in the wetlands nearby, and 000 was called. [The applicant] reported that he was extremely shocked at that time.… He described feeling responsible for her death, and stated "I could have given her medical help… I did not know it would happen… I left it there… It was my fault… I didn't know that she was seriously injured". The applicant reported that they had never had a fight like that before or any physical altercation between them. Dr Kennedy also reported that the applicant told him that he and the victim lived with the applicant's parents from February 2006 until the incident in June 2006. The account given to Dr Kennedy is plainly a fabrication and it is untrue that he and the victim lived with the applicant's parents from the time the victim came to Australia.
In her statement made to police on 17 June 2006, Ms H said that the applicant would not let the victim go out unless he was with her. She said the victim would do what the applicant said because she did not want any trouble. She also said that the victim told her that back in Fiji, she would party all the time but when she came to Australia, that was cut off by the applicant. She had also been told that the victim came to Australia to do a course but that the applicant would not let her do that. Ms H said that at one time she talked with the victim about getting her work but apparently she said she did not have permanent residency and so she was not able to do this. Ms H then said: I told [the victim] that this is Australia and that women have rights here and that if she wants to do something then she should just do it. And she told me that [the applicant] would get angry about it and then she told me that he was not really her husband. According to Ms H, the victim told her that they were married but they did not love each other and it was pretend so that she could come to Australia. She also said that she liked another man and showed her a photo of that person. She said that the applicant had warned him to stay away from her. Ms H also said: She told me that one time [the applicant] had beaten him up and that he told him to back off her as they were going to get married and stuff.
Ms H also described an incident which she said occurred after she and the victim wanted to go out clubbing. The applicant objected to the victim going out and Ms H heard them talking behind the door in another language. Following that, the victim came and sat down beside her on the couch and the applicant asked her to go into the bedroom and talk to him. She refused. He then asked her to go into the kitchen and she recounted the following:
I then went into the kitchen and my partner then called me down to our room. I was now in my room and I could hear [the applicant] yelling and screaming in another language. I heard [the victim] yelling back and I came out of my room and went down to the lounge room. I hesitated as it wasn't my business, but it was my house too and I opened the door to the lounge room. I saw blood on the coffee table and carpet near the coffee table. There was also blood on the floor near to the front door. I saw [the victim] on the ground and [the applicant] had one foot on her head. [The victim] was on her stomach and her head was to the side. [The applicant] stopped and looked at me and I looked at him. [The applicant] then took his foot off her head. I went over to [the victim] and she was holding her stomach and crying. [The victim] had a cut on her bottom lip and some blood on her nose. Her left arm had a small cut and a bump on the forearm. [The applicant] stood there and he was saying things like, "She's alright".…
I took her from the lounge room and down to the bedroom. She was okay, but the cut to her arm would not stop bleeding. She told me that she was arguing about going to the club and he wouldn't let her. She said that he was pointing his finger at her and she pushed his finger away and then he pushed her and she pushed him back. She then said that he grabbed her and threw her. She said that was when she hit her arm. She said that he had hit her in the face and that he had kicked her in the stomach when she was on the ground. She said that he had kicked her three or four times and that he had his work boots on that had steel caps on them.…
Sometime later that night [the applicant] came back to the house and he walked in and went to her room. …
… I heard aloud (sic) bang come from that room and more yelling and another bang. It was then all quiet.
I was going to go into the room but my partner told me to stay out of it as it was not my problem. [The applicant] then left the room and [the victim] came into my room. She asked if she could use my phone to call her family. I gave her my mobile phone and she went and hid in the toilet.
Not long after I gave her the phone I needed to go to the toilet. I opened up the toilet door and the lights were off. The door felt like it hit something and I saw [the victim] leaning against the door and she was crying. She was on the mobile and talking to her sister. I said sorry and she pulled me into the room. I turned on the light and saw a huge lump on her head at the forehead. She had blood on her nose and her lip was bleeding still.
Ms H then said that on the following day when she was at home alone with the victim, the victim used her Optus prepaid mobile to call her family in Fiji. She said she spoke to her sister but that has sister did not believe her. The victim then asked Ms H to tell her family and Ms H said she spoke to her sister and told her what happened. She said she told her sister that the victim needed to get out of the house and away from the applicant.
According to Ms H, the victim asked what she could do and Ms H told her about the violence against women and stuff. Ms H said she told her about WAYSS and about intervention orders. Later that day Ms H said that she and the victim walked to the courthouse in Dandenong and made an application for an intervention order. She said the Court told her it would be a few days before the applicant would get it. She said that upon leaving the court they came across the applicant. She said the applicant was nice to both of them like nothing had ever happened.
On the following day Ms H said that her father picked her and the victim up from the house and drove to WAYSS where he dropped them off. She said they went in and saw a lady. The victim spoke to that lady in private for a while and was given a telephone number to ring to find her another place to live for about six weeks. On the following day Ms H's boyfriend came home telling her off because he knew that the victim had obtained a Court order against the applicant. According to her, the police had been to the applicant's workplace and given him the papers and explained the order to him. A few days later the victim told Ms H that she had the order removed. She said: She told me that she had too as she was scared of [the applicant] as he was getting angry about it. She said that he had changed and told her that it would never happen again and that he wanted to look after her.
Ms H was called to give evidence at the committal hearing on 17 April 2007. Her statement of 17 June 2006 was admitted into evidence. In cross-examination, she adhered to her account of the events I have described above.
In the course of cross-examination in this hearing, the applicant denied that he was violent towards the victim. He said that he may have slapped the victim but that was as far as it went. When asked why he used physical force, he said that all he did was to give the victim a tap on the cheek.
I also had in evidence a statement from Ms O who said she worked at WAYSS in Dandenong. She confirmed that the victim came to see her with another female on
14 March 2006 while she was working. The victim told her that her husband, the applicant, on 10 March 2006 had kicked and pushed her. She was shown a bruise on her hand and forehead and said they were the result of this assault. She also said that the applicant on 26 February 2006 pushed her against a wall and screamed at her. She said she didn't feel safe with him and wanted safe accommodation. Ms O said that because of the victim's situation which she considered was high risk, she recommended a woman's refuge. Ms O completed the forms required for a referral through Women's Domestic Violence Crisis Service (WDVCS). She also spoke to the victim about getting an intervention order against the applicant and explained to her what she needed to do to get one. Ms O also said that while waiting for WDVCS to contact her, she was informed that the victim wasn't answering the telephone. WDVCS subsequently told her that they had spoken with the victim and that she said she felt safe and wasn't going to go to the woman's refuge.
I also had in evidence a statement made by Ms K who was the person who signed the statutory declarations made by the applicant's parents in relation to the Immigration matter. I have already described the falsifying of the statutory declarations made by the applicant's mother and father (see paragraph [28]).
I had in evidence a statement made by a Ms N on 19 June 2006. Ms N said that she had been friends with the victim since they went to school together in 2003 in Fiji. She also knew the applicant whom she said would chase the victim around by talking to her in the classrooms and to try to tell her that he liked her. She said the victim told him she did not like him. Ms N came to Australia in February 2004 and only kept in contact with the victim on an irregular basis. On the day the victim came to Australia, accompanied by the applicant, they visited Ms N's house. Ms N said she was surprised to see her with the applicant and when she spoke to her in private, the victim told her she married the applicant and that they were going to separate after they got citizenship in two years’ time. She was told not to tell anyone. She then asked the victim if the applicant knew she was going to leave him after two years and she said that he did and that it was okay.
Ms N said she spoke with the applicant about the victim about a month or so later when he told her that he knew the victim was going to leave him after two years and he was just helping someone. The victim told her that the applicant's family did not know about the marriage. She did not know why that was the case. Ms N also said that the victim told her that her marriage with the applicant had never been consummated. She also told Ms N about a fight that she had with the applicant in about April 2006 and that she had rung her mother in Fiji asking for help. She said that the following morning her mother called on her stepfather's mobile phone and she talked with the victim's mother. Apparently she said there was something wrong with her daughter as she had called her and she was crying. Her mother asked Ms N to find out what was going on and to call her back.
Ms N called the applicant and asked him what had happened. Apparently he explained that there was some drinking and that they had a puppy dog at home. He said he was trying to grab the puppy dog off the victim's hand when she fell on the floor or hit the wall. He said that she had a lump on the head and a cut to her arm. The applicant then put the victim on the telephone who said that everything was fine. Ms N said she knew she was only saying that because the applicant was there. Ms N also gave evidence at the committal hearing on 17 April 2007. Her statement was admitted into evidence and she was cross-examined. At the committal hearing, in cross-examination Ms N said that her statement: I knew that she was saying everything was fine because [the applicant] was there was a suspicion and she did not have actual knowledge of this. Ms N stated that she was concerned and she said: I could suspect something in her voice, that something was wrong. She did not resile from any of the other statements she had made. In her statement Ms N said a couple of days later she went to the house where the victim was staying and saw the cut on her forearm. She said it was about 1 cm long but deep. When asked what happened, the victim said she fell somewhere.
I have no reason to doubt the evidence given by any of the witnesses who were called to give evidence at the committal hearing. Their evidence was consistent and there was no suggestion of collusion. The picture which that evidence paints of the applicant is very different to that which was assessed by Dr Kennedy. In fact, all of the evidence combined discloses that contrary to the applicant's own assessment of himself, he is capable of extreme violence fuelled probably by jealousy and anger. The nature of the harm which the applicant is capable of inflicting on others is so serious that in my view, any real risk that it may be repeated would be unacceptable to the Australian community.
Given that I am of the opinion that any real risk of violent conduct, if repeated, would be unacceptable, I need to examine information and evidence which establishes the risk of the applicant re-offending and evidence of rehabilitation that may have been achieved by the time I heard this matter.
Ms Marian Clarkin of counsel, who appeared on behalf of the applicant, submitted that I should have regard to the fact that the applicant had no criminal history prior to his conviction; that he did not associate with criminals; that he had a close bond with his family, with whom he resides and to whom he provides financial assistance; that he is remorseful for his actions as demonstrated by his early plea of guilty; that the lengthy prison term which he served acts as a deterrent; and that he has adhered to his parole conditions. Ms Clarkin also referred to a report obtained from Dr Aaron Cunningham who describes himself as a forensic psychologist. Dr Cunningham assessed the applicant as having a low risk of violent re-offending.
Ms Clarkin's first submission is factually incorrect. The evidence to which I have referred above plainly indicates a strong propensity for violent criminal behaviour even though the applicant had not been previously convicted. It is correct to say that he did not associate with criminals or at least there was no evidence of such association. It may also be correct to say that he has a close bond with his family but that has not, in the past, prevented his criminal conduct or propensity for violent conduct. The evidence discloses the applicant has deceived others, even his family. In fact his dishonesty casts a considerable shadow over his description of the events which occurred on 10 June 2006. Dodds-Streeton JA pointed out that his attempt to cover up the events in the early hours of that morning involved an element of calculation which destroyed any possibility that the victim would receive the assistance she desperately needed. He lied to the police when first interviewed about the incident.
Although Ms Clarkin also submitted that the applicant was remorseful for his actions as demonstrated by his early plea of guilty, with respect, that is not quite how the guilty plea came about. After lying to the police on the first interview and to his parents about the victim's disappearance, and his calculated attempts to disassociate himself from her disappearance, he subsequently gave to the police an account which the transcript discloses was fragmented and very difficult to follow. Although the police initially charged him with murder, as the applicant said in evidence in the hearing of this matter, he accepted a plea bargain, resulting in him pleading guilty to manslaughter.
Following the autopsy report which referred to the cause of death as upper airway obstruction in association with head injury, and Dr Ranson's evidence at the committal hearing where he said he was unable to be certain about the most likely mechanism of the upper airway obstruction, without a clear statement of the events which occurred that evening and without an eyewitness, it became apparent to the prosecution that there may have been problems with obtaining a conviction on the murder charge. The concern appears to have been that an essential element of that charge, the mens rea, could not be proved beyond reasonable doubt. Justice Teague alluded to this at the plea hearing on
29 January 2008 when he said:
And then taking the deceased to a position where what actually occurred may be a matter of inference/speculation, but it seemed from my reading of the materials that the way you’ve obliquely referred to some matters in that suggest you would have had real difficulties if the matter had gone ahead as contemplated on the original presentment, being able to establish that there was the relevant intention.
Counsel for the Crown agreed with the statement. Counsel also confirmed that discussions were commenced early in relation to a resolution of the matter and that he relied on the report of Dr Kennedy which referred to an absence of a history of anger or aggression. For unexplained reasons, much of the evidentiary material to which I have referred above was not provided to Dr Kennedy when he made his report. The guilty plea clearly resulted from a plea bargain. The evidence, to which I have referred above, does not, in my opinion, disclose remorse. In fact, even as late as 14 December 2012 when the applicant made his statutory declaration in support of his application to have the Minister not cancel his visa, the applicant continued to make false statements in his own interest.
Although Ms Clarkin submitted that the applicant, by serving a lengthy prison sentence, would be deterred from further criminal conduct, she did not produce any evidence to support that submission. The authors of the text Australian Sentencing, Richard Edney and Mirko Bagaric, referred to the ineffectiveness of special deterrence at paragraph 3.3.2. They concluded, at page 58:
Accordingly, the weight of evidence supports the view that subjecting offenders to harsh punishment is unlikely to increase the prospect that they will become law abiding citizens in the future.
Edney and Bagaric also examined the effectiveness of general deterrence. While they found that there was a general link between punishment and crime rate which shows an inverse relationship between the incidence of violent offending and the use of imprisonment, the length of imprisonment is irrelevant. Importantly, the authors said at paragraph 3.3.3.3:
As noted above, it has been contended that the most important consideration regarding deterrence is not the penalty, but rather the perceived likelihood of apprehension. The Canadian Sentencing Commission noted that 'the old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research'. The connection between the certainty of punishment and crime rate has been reproduced by numerous studies.
Edney and Bagaric noted that the apparent success of recent zero tolerance policing, which involves a greater police presence strictly enforcing minor offences, appears to confirm that.
Edney and Bagaric also dealt with rehabilitation and whether it works. At paragraph 3.4.1, they state:
Despite the progressive and superficially appealing nature of rehabilitation as a sentencing objective its reception by the courts and legislators can at best be described as lukewarm.
And further, at paragraph 3.4.2:
The most damaging objection against rehabilitation as a suitable goal of sentencing has been that it does not work. Following extensive research conducted between 1960 and 1974, Martinson in a very influential paper concluded that empirical studies had not established that any rehabilitative programs had worked in reducing recidivism.…
However, several years later Martinson softened his position, stating that some types of rehabilitation programs, particularly probation and parole, may be effective and that generally 'no treatment… is inherently either substantially helpful or harmful. The critical factor seems to be the conditions under which the program is delivered'.…
That there is some level of success with rehabilitative techniques in relation to the least dysfunctional offenders is evidence not so much of a victory for the rehabilitative ideal as for the fact that some well adjusted people occasionally dabble in crime.…
Overall, the jury is still out on the ability of criminal sanctions to reform offenders: 'our understanding… of what works, with which offenders and under what conditions, in reducing offending… [is] still embryonic'.… Where an offender does not re-offend there are always at least two possible causes of this: genuine moral reform or the fear of again being subject to punishment. In most cases there are also numerous other considerations which may be relevant, such as employment, education and family situation. This makes it very difficult to conduct or observe controlled experiments which provide pointed information regarding the effectiveness of rehabilitative sanctions.
I had in evidence a document described as Victorian Intervention Screening Assessment Tool which is from Corrections Victoria Department of Justice. It was completed on
17 October 2011. Under Module 11, which deals with offence-specific and offence-related risks and needs, is the following case note:
His offence specific factors are related to anger management concerns and he agrees these are prevalent and he agrees to address by way of counselling/programs post release.
Module 2 of the Assessment Tool deals with violence. It is recorded that the applicant has never taken part in a treatment program for violent behaviour. The case notes under this module also indicate the applicant was assessed for the Violence Intervention Program but was assessed as unsuitable due to low risk level. While there are questions in that module which ask whether the person has ever committed an offence that involved injury to another person or the use or threatened use of a weapon and whether in the past three years the person has been found guilty of a violent offence, with respect, these questions appear to be inadequate. A person can commit acts of violence causing injury to other persons with or without the use of a weapon and never have been charged with an offence or been found guilty of a violent offence. I have no doubt that in the domestic situation, this is likely to be more common than having charges brought. If the questions were framed in a way which took into account reports of violence which had not been referred to the police, the resulting score under that module would be significantly different. Given the way the questions are framed, which resulted in negative answers regarding a history of prior violence, it is not surprising that the case notes conclude that the applicant has no prior violence history. However, given the evidence of his prior violence history which I have recorded above, that conclusion is plainly incorrect. Nevertheless the case note also states that the applicant was keen to address anger management issues through programs such as Amends Behaviour Change and by way of counselling with a psychologist, post-release. He has not done so to date.
The applicant also relied on the report prepared by Dr Cunningham which is dated
18 March 2013. Dr Cunningham assessed the applicant at the Maribyrnong Immigration Detention Centre on 15 March 2013. In his opinion, the applicant presented as a low-risk of violent re-offending.
There are several problems with accepting what Dr Cunningham said in his report. The first is that Dr Cunningham was not available to be cross-examined regarding his report on the day set down for the hearing of this matter. Although Mr David McLaren, a lawyer with the solicitors Sparke Helmore who appeared on the behalf of the Minister, said he requested Dr Cunningham's presence for the purpose of cross-examination, I was told on the first day of the hearing that Dr Cunningham was not available. I asked solicitors for the applicant to make enquiries regarding the availability of
Dr Cunningham to be cross-examined by telephone. Despite extensive attempts to contact Dr Cunningham, I was told that he was not responding. Therefore, at the conclusion of the first hearing day, I adjourned the hearing of this matter to 11 am on the following day to allow Dr Cunningham to be contacted. At the resumed hearing, I was informed that Dr Cunningham was not available for cross-examination although he was prepared to answer questions put to him in writing. I explained that this was unacceptable and did not permit proper cross-examination. I was also informed that Ms Clarkin was unable to be present due to a prior court commitment. I then adjourned the matter to 2:15 pm. Concluding submissions were then made by both parties.
However, after concluding the hearing on 11 April 2013, I was informed that
Dr Cunningham would be available to be cross-examined by telephone on 15 April 2013 at 11 am for 15 minutes. On 12 April 2013 I received an e-mail from Mr McLaren objecting to reopening the hearing. Attached to that e-mail were three letters sent by
e-mail. They indicate that on 2 April 2013 solicitors for the Minister requested that
Dr Cunningham be made available for cross-examination in person at the hearing. On
3 April 2013 the applicant's solicitor wrote to the Minister stating that Dr Cunningham was provided a complete copy of the G documents to enable him to conduct a clinical and forensic psychological evaluation of the applicant and then stated: you are welcome to subpoena Dr Cunningham to be made available in person at the hearing, as we do not intend to do so. On 5 April 2013 Mr McLaren again wrote to the applicant's solicitors requesting that Dr Cunningham be available at the hearing because he was concerned that there were matters about the preparation of his report and matters referred to in that report which required clarification. Mr McLaren said he was content to have
Mr Cunningham cross-examined by telephone. He also said that if Mr Cunningham was not made available to give oral evidence, he would be making submissions at the hearing as to the weight that the Tribunal should afford the report.
Given the history of the attempts to have Dr Cunningham cross-examined regarding his report, it was my view that Dr Cunningham was given reasonable notice prior to the commencement of the hearing on 10 April 2013 that he was required to attend the Tribunal for cross-examination. It should have been apparent to the applicant's solicitors that to allow Dr Cunningham’s opinion evidence to be admitted without the opportunity to cross-examine would be unfair to the respondent. While this Tribunal is not bound by the rules of evidence, it is required to accord procedural fairness to both parties. The Tribunal had afforded Dr Cunningham a reasonable opportunity to be cross-examined. Therefore, it was inappropriate to set aside yet another day for that purpose particularly having regard to the 84 day time limit imposed by s. 500 (6L) of the Migration Act which expires on 24 April 2013.
Despite the absence of Dr Cunningham for the purposes of cross-examination,
Mr McLaren did not object to his report being taken into evidence. However, he submitted that it should be given no weight. This was not only for the reason that
Dr Cunningham was not cross-examined, but also because it was clear that
Dr Cunningham did not have access to documents summonsed from Corrections Victoria when preparing his report. Those documents included the transcript of the committal hearing; the transcript of the plea hearing; the autopsy report from Dr Ranson; the statement of Ms H made on 17 June 2006; the statement of Ms N made on 19 June 2006; the statement of Ms O made on 27 June 2006; the statement of the applicant made on
10 June 2006; the transcript of the police interview with the applicant at several times during 10 June 2006; the statement of Ms K made on 10 August 2006; and copies of the statutory declarations purportedly made by the applicant's parents.
I accept Mr McLaren's submissions regarding the weight which should be given to
Dr Cunningham's report. In his report, Dr Cunningham set out the sources of information upon which he relied. The documents to which I have referred to above were not amongst those sources. The significance of this is that although
Dr Cunningham administered a test to the applicant known as the Historical Clinical Risk – 20 (HCR-20), he did not have significant information which contradicted what he had been told by the applicant about his violence history. That test is a checklist consisting of 20 items. There are 10 historical or static unchanging items; 5 clinical or dynamic items that may change; and 5 risk management items that pertain to future circumstances (see: The Case Against the HCR-20, 2011, by Joseph R. Nevotti, Ph.D.). According to Dr Cunningham, the HCR-20 is used to assess risk of future violent offending. He reported that the applicant met the criteria under the historical indicators; did not meet any criteria under the clinical items; but met one of the criteria under the risk items. While it may be speculation on my part that the additional information to which
Dr Cunningham was not privy would have altered the applicant's score on the HCR-20, it is difficult to believe that it would not have had any effect. In fact it is the uncertainty of the effect of that additional information which makes Dr Cunningham's report, without the opportunity to cross-examine, worthless. In my view, I should not rely on it.
In fact, Dodds-Streeton JA in the Appeal Court noted that Dr Kennedy's report was vitiated by the omission of the material to which I have referred above. It will be recalled that Dr Kennedy concluded that the applicant's likelihood of recidivism was remote.
Finally under this topic, Ms Clarkin submitted it was significant that the Adult Parole Board was willing to release the applicant under parole supervision at the conclusion of the minimum term of his sentence. She submitted that if the applicant failed to comply with the parole order or re-offended during the time he was on parole, he risked serving another period of incarceration which she submitted was a sufficient deterrent.
Edney and Bagaric state in their text Australian Sentencing at page 312:
Essentially, the provision of a non-parole period or minimum term is designed to assist the offender's reintegration into the community after imprisonment, as well as signifying the sentencing court's view of the minimum period required to be served by the offender in all the circumstances of the case. Parole has been considered to be the minimum period for which the interests of Justice require the offender to be imprisoned.
The High Court of Australia (Barwick CJ, McTiernan, Menzies, Stephen and Mason JJ) dealt with the function of parole in Power v The Queen (1974) 131 CLR 623. The Court in that case was dealing with the Parole of Prisoners Act 1966 (NSW). It pointed out that a prisoner can, by his behaviour while incarcerated, secure release from confinement on parole without serving the full term to which he or she has been sentenced but that the encouragement to reform did not and was not intended to take the sting out of imprisonment. Barwick CJ, Menzies, Stephen and Mason JJ said, at 628:
Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.
In another High Court of Australia decision (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Bugmy v The Queen (1990) 169 CLR 525 the Court had to deal with the fixing of a minimum term of imprisonment. Mason CJ and McHugh J said, at 532:
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak.…
Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.…
Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community.
In my opinion, there are two important points which can be drawn from these cases. The first is that release on parole requires a balancing decision. The benefits which may accrue by way of rehabilitation must be weighed against the danger to the community by releasing the prisoner. Quite plainly, the release of a prisoner on parole cannot remove the risk of re-offending. It provides an opportunity for the prisoner to rehabilitate but it does not guarantee that rehabilitation will occur. It is undoubtedly true that while on parole, a prisoner may be deterred from offending for the reason that he or she may then be required to complete the remainder of their sentence, once that sanction disappears, if the risk of being caught has diminished, the risk of re-offending will rise.
However, in cases such as this under the Migration Act, I am required to assess the risk of re-offending beyond the maximum sentence period. It is a far more onerous task. Furthermore, because the person being assessed is not an Australian citizen, there can be no doubt that the tolerance of the Australian community will not be the same were the person an Australian citizen. The second point is that the further forward one has to make predictions about the conduct of an offender, the less likely it is that the prediction will be accurate.
I had in evidence a Parole Assessment Summary prepared by Corrections Victoria regarding the applicant. The report is dated 3 October 2011. Although that report sets out a summary of the offence committed by the applicant, it does not go into the background or detail to which I have referred above. It is taken from Teague J's sentencing hearing. It does refer to the intervention order and what is described as physical force used against the victim. It also states that Justice Teague noted there had been some remorse but described his conduct as morally blameworthy. It also stated he had no past criminal history which, following his submissions about falsifying the statutory declarations in respect of the victim's visa application, is incorrect. The report also incorrectly states that the applicant was an Australian citizen. It also states that the applicant reportedly suffered from severe anger management issues at the time of offending and has suffered from depression and anxiety sense. The applicant reported an intention to address his anger management issues post-release with a psychologist. This has not yet happened. The report states that the applicant has had no recorded prison incidents other than medical and there were no problems with his behaviour. A Corrections Victoria Case discussion meeting which was held on 20 December 2011, the day before his release on parole, indicates 10 incidents recorded. I had in evidence a copy of those incident reports and they are relatively minor. The last incident suggests that the applicant attained a bottle of wine which was discovered in his unit (cell). It was alleged he had told other prisoners that it was to celebrate his parole.
The Parole Assessment Summary also stated the applicant was identified as a Serious Violent Offender and that he had not been assessed by Offending Behaviour Programs. On that basis, it recommended that the board not grant parole pending the assessment of the applicant by Offending Behaviour Programs. However the applicant was assessed on 17 October 2011 for the Violence Intervention Program but deemed to be unsuitable due to low risk level.
In my opinion, the fact that the applicant was granted parole after serving the minimum sentence imposed on him does not alter his risk of re-offending. I did not have any empirical evidence which pointed to a correlation between the grant of parole after serving a minimum sentence and the rate of re-offending. Furthermore, as Mr McLaren submitted, there are in any event different considerations at play in cases where non-citizens are involved and visa cancellation is in issue. I have already referred to these above and in particular the Australian community's tolerance for any risk of future harm. I am also concerned by the fact that the report prepared for the assistance of the Parole Board contains some significant errors and omissions.
In conclusion, I find that the evidence discloses that the nature of harm to individuals or the Australian community should the applicant repeat his violent offending is so serious that even a low risk of that occurring in these circumstances would be unacceptable to the Australian community. In any event, despite a number of persons qualified to make a psychological assessment of the applicant finding he had a low risk of recidivism, all of those reports omit the full nature and extent of the applicant's prior violence history and the very disturbing extent of his propensity to be untruthful. Their value must be diminished as a consequence of those omissions. I find that there remains a real risk that the applicant will re-offend and, taking into account the seriousness of his previous offending, this factor must weigh heavily against allowing the applicant to retain his visa.
STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA
Paragraph 9.2 of the Ministerial Direction provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant began living in Australia permanently when he was aged 21 years. Other than five return trips to Fiji of very short duration, the applicant has now lived in Australia for approximately 9 ½ years. However about 5 ½ years of that time has been spent in prison. His offence of criminally negligent manslaughter was committed after the applicant had been in Australia are little over 2 ½ years. In fact, his first offending occurred about 2 years after his permanent arrival in Australia when he procured the false statutory declarations in respect of the victim's visa application in November 2005. He admitted that offence.
Ms Clarkin submitted that the applicant did not commence offending soon after arriving in Australia for the reason that he did not offend for three years, which she said was a significant length of time before his first and only offence. The problem with that submission is it does not take into account the applicant's false statutory declarations, for which he has admitted he was responsible, two years after his arrival in Australia. She has also not taken into consideration the fact that although the applicant has resided in Australia for about 9 ½ years, some 5 ½ of those years have been spent in prison. In fact, he has spent very little time in the community. There is little or no evidence that the applicant has spent any significant time contributing positively to the Australian community.
As is set out in paragraph 9.2 (1)(a)(i) of the Ministerial Direction, less weight should be given to this consideration where the person commenced offending soon after arriving in Australia. In my opinion, given that the applicant first offended some two years after arriving in Australia to reside permanently, less weight should be given to his ties to the Australian community and/or family residing in Australia.
Much was said about the applicant's ties to his family. I had in evidence statutory declarations from the applicant's parents, his two brothers and his grandfather. I also had in evidence statements made by number of other persons unrelated to the applicant. Those statements generally are in the form of character references. They do not go to the strength, duration and nature of ties with Australian citizens or Australian permanent residents.
The statutory declarations made by family members of the applicant predominantly refer to his financial contribution to the family. In particular, the applicant's parents have indicated that they took out a further mortgage on their home in order to pay for the applicant's legal expenses incurred as a result of his criminal trial and appeal. They said that the applicant contributed towards household living expenses as well as assisting in repayment of the loan. Attached to one of those statutory declarations is a letter from the applicant's solicitors who acted in his criminal trial. The letter is addressed to the applicant's solicitors and it simply refers to the applicant's legal costs. While they are significant, there was no evidence before me indicating that any family member was liable for those expenses. Nor do the documents attached to the applicant's parents' statutory declarations disclose further mortgaging of the family home. They simply disclose the current mortgage, which is substantial. The applicant's father has full-time employment and his mother has permanent part-time employment. Although the applicant's two brothers are 29 years and 23 years of age, both are unemployed. The applicant's grandfather also lives with his parents. He has indicated he receives a pension.
Ms Clarkin appears to have assumed that if the applicant is not permitted to remain in Australia, he will no longer be able to contribute financially to his parents’ mortgage repayments. There is no obvious reason why that should be the case. There was no evidence before me about the employment situation in Fiji or the opportunity in that country for reasonable remuneration.
Also, one of the applicant's brothers referred to relatives in Fiji even though the applicant, in his statutory declaration made on 14 December 2012, stated: … my entire direct family reside in Australia and are all Australian citizens. That brother said relatives in Fiji have disowned the applicant whereas his other brother said that the relatives no longer have any contact with them.
The applicant's grandfather, who is 84 years of age, declared that it was his last remaining wish that the applicant perform his ceremonial religious burial. That of course would not be possible if the applicant were not permitted to return to Australia.
Other than the material I have referred to above, there was no evidence before me indicating that the applicant had strong family ties for other reasons. Furthermore, clearly the applicant has not contributed to the finances of the family to any significant extent in the past 5 ½ years. Despite that, they appear to have managed.
In my opinion, while this factor should be seen as favouring the non-cancellation of the applicant's visa, because the offending occurred very shortly after arrival in Australia as an adult, less weight should be given to it.
BEST INTERESTS OF MINOR CHILDREN
There was no evidence before me that there were any minor children whose interests would be affected by the decision. Therefore this consideration is not relevant in this case.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 9.4 of the Ministerial Direction deals with international non-refoulement obligations. Insofar as it is relevant to this matter, it provides:
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
(2) The power to cancel a visa is a fundamental exercise of Australian sovereignty. The existence of a non-refoulement obligation does not preclude cancellation of a person's visa. This is because Australia will not necessarily remove a person, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person's criminal offending or other serious conduct in deciding whether or not the person should continue to hold a visa.
(3) Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICC PR) and its Second Optional Protocol.… Specifically, Australia has non-refoulement obligations:
a) under the Refugees Convention as amended by the Refugees Protocol
(s. 36(2)(a)).…; and
b) where there are substantial grounds for believing that, as are necessary and foreseeable consequence of the person being removed from Australia to a receiving country there is a real risk that the person will suffer significant harm. A person will suffer significant harm if:
– the person will be arbitrarily deprived of his or her life; or
– the death penalty will be carried out on the person; or
– the person will be subjected to torture; or
– the person will be subjected to cruel or inhumane treatment or punishment; or
– the person will be subjected to degrading treatment or punishment.
The first point to make is that the applicant is not a refugee. It is therefore likely that the Refugees Convention does not apply to him in any event. The second point is that the applicant has not expressed a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. That is generally regarded as the basis upon which protection obligations arise and those considerations are set out in s. 36 (4) of the Migration Act. What the applicant has said is that he fears retribution from the victim's family if he were returned to Fiji.
In his statutory declaration made on 14 December 2012 the applicant said that he had been warned by the victim's father that he would get 'rid of me' if he ever returned to Fiji. One of the applicant's brothers said he was concerned for the applicant's well-being and safety because the victim's family all reside in Fiji. He also said: It has also come to my attention that they have also threatened him if he is ever to return to his country of citizenship.
The applicant's mother was cross-examined in the course of the hearing. When referred to the applicant's statutory declaration made on 14 December 2012 regarding a threat made to her son, she said that the victim’s mother told her: they would kill him. Despite that concern, the applicant’s mother made no mention of that in her statutory declaration made specifically for the hearing of this matter. Her principal concerns were financial. Nor was she able to provide any further details about when the threat was made or how.
In my opinion, Australia's International non-refoulement obligations do not arise in this case. In any event, as Mr McLaren submitted, the applicant’s claim to have been threatened is vague and unsubstantiated. Furthermore, given the applicant's propensity to provide self-serving and misleading information, in the absence of other objective evidence, I find that the applicant has not established on the balance of probabilities that there is a real risk that he will suffer harm if he were returned to Fiji. This primary consideration does not assist the applicant.
OTHER CONSIDERATIONS
In addition to the Primary considerations which I have dealt with above, I am also required to consider other considerations which are set out in paragraph 10 of the Ministerial Direction. It provides:
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain Australian indefinitely;
b) Impact on Australian business interests;
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person's age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
I have already dealt with the matters set out in (1)(a) of paragraph 10. Essentially, what has been stated in the evidentiary material is that the impact on the applicant's immediate family in Australia would be financial, except for the grandfather who has a desire that the applicant officiate at his funeral.
In his statutory declaration the applicant described his permanent employment and the fact that he was contributing to paying off his parent's mortgage. He also said that he believed there would be a significant impact on Australian business interests, as the mortgagor would be forced to foreclose on his parent's home if he was ordered to return to Fiji and was unable to contribute towards the mortgage payments. With respect to the applicant, the foreclosure of one mortgage in Australia in respect of residential premises does not constitute a significant impact on Australian business interests. In any event, as I have already said, it is not a foregone conclusion that the applicant, should he be returned to Fiji, would nevertheless not be able to continue to assist with the payment of his parents' mortgage. Furthermore, they seem to have managed while he was imprisoned. Also, as Mr McLaren submitted, his two brothers reside with their parents and although currently unemployed, they have both been employed in the past and there was no evidence to suggest that they were not capable of gaining employment in the future. They should be able to provide financial assistance when they become employed.
The applicant in his statutory declaration of 14 December 2012 also dealt with the matters set out in paragraph 10(1)(d) of the Ministerial Direction. He said he would face impediments if returned to Fiji in establishing himself and maintaining basic living standards taking into account his age and medical condition, hepatitis B; that there would be a substantial language barrier or cultural barrier; and that the social, medical and/or economic support available to him in Australia would not be available in Fiji.
The applicant is a young man and despite having hepatitis B, the evidence was that his condition did not require medication at this time. I also accept Mr McLaren's submissions that the applicant has lived for all of his formative years in Fiji and, since commencing to reside permanently in Australia, has returned to Fiji on five occasions. There was no evidence that he would suffer any cultural or language barriers if returned to that country. There was no evidence before me that he would not have access to social, medical or economic support as a Fijian citizen.
I have not been able to determine any other considerations which should be taken into account under paragraph 10 of the Ministerial Direction. In my opinion, the matters to which I have referred above that fall within paragraph 10 do not assist the applicant's case except for the fact that he is currently employed in Australia and is able to at this time contribute to his parents finances. That consideration weighs in favour of not cancelling the applicant's visa.
CONCLUSION
I have found that the primary considerations in the Ministerial Direction, particularly the seriousness of the applicant's offending and his risk of recidivism weigh heavily against his claim that his visa should not be cancelled. The crime of which he was convicted, described as criminal negligence manslaughter, was particularly heinous. He showed callous disregard for the victim, removing her from where she first fell in an unconscious state but nevertheless alive, to a place where she could not be seen by passers-by and in obvious danger because she was placed within 2 feet of a creek or sometimes described as a pond.
Furthermore, not only did he not assist her or call for assistance, he deliberately set out to conceal what had happened. He lied to his parents and he lied to the police. He washed the mud from his feet and shoes in a decision calculated to conceal his involvement in the victim's disappearance. Also, as the evidence disclosed, he had previously used violence against the victim but continuously denied having done so, including in the course of his cross-examination at the hearing of this matter. The evidence from a number of witnesses, some of it admittedly hearsay, was nevertheless consistent and there was no evidence of collusion. Those witnesses were subjected to cross-examination at the committal hearing. They did not resile from their written statements.
Although the applicant was assessed as having a low risk of re-offending by two psychologists, neither of those persons was aware of his history of violence towards the victim. Nor were they aware of all the circumstances surrounding her death and the events which followed. They were not made aware of his criminal conduct in obtaining false statutory declarations in respect of the victim's visa application. The first psychologist's report was trenchantly criticised by the Supreme Court and the Appeal Court. The second psychologist's report did not take into account the evidentiary material which became available to the Tribunal by way of summons nor did that psychologist make himself available for cross-examination despite being given a reasonable opportunity to do so. Although the applicant claimed he was remorseful, given the history of deceit and lying, I am not confident that he has shown remorse. I have found that his risk of re-offending is real and not fanciful or speculative. Even if that risk is properly categorised as low, given the very serious nature of his violent conduct and the attempted deception after the events which resulted in the death of the victim, I would nevertheless hold that risk to be one which the Australian community would not tolerate.
While I accept that the applicant's immediate family members reside in Australia and are permanent residents, the strength of his relationship with those family members seems to be based principally on financial considerations. Even if I were to accept that there were strong emotional and cultural or religious ties to his family, of which there was no evidence save perhaps for the request by his grandfather to officiate at his funeral, given that the applicant commenced offending about two years after coming to Australia to reside permanently, I should give such considerations less weight. In my opinion, they do not in any event outweigh the other primary considerations which favour the cancellation of the applicant's visa.
Although the applicant and his mother made vague and unsupported claims regarding death threats to the applicant should he be returned to Fiji, there was no objective evidence that his life would be at risk on return. I have found that the non-refoulement obligations under the Refugees Convention do not apply to the applicant. The threat of retribution from the victim's family, even if real, is not a relevant consideration under the Convention. Consideration of this matter does not assist the applicant.
I have also examined, under paragraph 10 of the Ministerial Direction dealing with other considerations, the effect of cancellation of the applicant's visa on his immediate family in Australia, the impact on Australian business interests, and the impediments applicant may face if removed from Australia to Fiji. While I accept that there may be some impact in the immediate future on the finances of the family remaining in Australia, it does not carry significant weight. I also accept that the applicant may experience some short-term difficulties in maintaining basic living standards on return to Fiji. I do not accept that his age, health, language or cultural barriers place him in a position where he will not be capable of maintaining basic living standards which are available to other citizens in Fiji. While I accept that the standard of living in Fiji may not be as high as in Australia, that is not a relevant consideration. There was no evidence before me that the applicant would not have access to medical or economic support available to other citizens in Fiji.
In my opinion, the primary considerations which weigh in favour of cancelling the applicant's visa significantly outweigh the primary consideration which slightly favours not cancelling his visa as well as the other considerations which also weigh in favour of not cancelling his visa. Accordingly, I find that the decision of a delegate of the Minister to cancel the applicant's Class BQ Subclass 139 Skilled – Designated Area Sponsored visa on 23 January 2013 was the preferable decision in the exercise of the Minister's discretion under s. 501 (2) the Migration Act. I affirm that decision.
I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior Member....[sgd]....................................................................
Associate
Dated 19 April 2013
Dates of hearing 10-11 April 2013 Counsel for the Applicant Ms M Clarkin Solicitors for the Applicant First Legal and Migration Services Pty Ltd Advocate for the Respondent Mr D McLaren Solicitors for the Respondent Sparke Helmore Lawyers
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