Dauvou and Minister for Immigration and Border Protection (Migration)
[2016] AATA 836
•25 October 2016
Dauvou and Minister for Immigration and Border Protection (Migration) [2016] AATA 836 (25 October 2016)
Division
GENERAL DIVISION
File Number
2016/3006
Re
Uluibau Dauvou
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 25 October 2016 Place Sydney The decision under review is set aside. Instead the Tribunal decides, in accordance with s 501CA(4) of the Migration Act 1958, to revoke the cancellation of Mr Dauvou’s visa.
........................[sgd]................................................
Deputy President S E Frost
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – mandatory cancellation of visa – application for revocation of cancellation decision – character test – substantial criminal record – driving offences – alcohol use – discretion to revoke mandatory cancellation – Ministerial Direction No 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – expectations of Australian community – best interests of minor children in Australia – other considerations – unborn child – employment prospects – decision under review set aside
LEGISLATION
Migration Act 1958 ss 499, 500(1)(ba), 501, 501(3A), 501(6)(a), 501(7)(c), 501CA(4)
SECONDARY MATERIALS
Direction no. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President S E Frost
25 October 2016
INTRODUCTION AND BACKGROUND
Uluibau Dauvou is a 22-year-old Fijian national who has had his visa cancelled on character grounds. He has asked the Tribunal to reinstate his visa so that he can remain in Australia.
Mr Dauvou’s visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act). That is a mandatory cancellation provision. It applies whenever a visa holder:
(a)has a ‘substantial criminal record’, as defined in the Act; and
(b)is serving a full-time sentence of imprisonment for an offence or offences against Australian law.
Despite the mandatory nature of s 501(3A), the Minister has the power, as a matter of discretion under s 501CA of the Act, to revoke a visa cancellation. In Mr Dauvou’s case, an authorised delegate of the Minister considered whether to revoke the cancellation of the visa but decided against taking that course. The decision not to revoke the cancellation of Mr Dauvou’s visa is reviewable in the General Division of this Tribunal, under 500(1)(ba) of the Act.
MR DAUVOU’S HISTORY
Mr Dauvou first arrived in Australia in November 2009, at the age of 15.
In September and October 2012, on two separate occasions, Mr Dauvou came to be in possession of mobile phone handsets that had been stolen from their owners. Mr Dauvou presented the handsets to pawnbrokers and in each case represented that he was the true owner of the goods. In March and April 2013 he was convicted on two counts of making a false statement and one count of larceny.
In November 2013 Mr Dauvou was convicted of driving with mid-range prescribed concentration of alcohol (PCA) and driving with an expired licence. He was fined a total of $1,500 and disqualified from driving for 12 months.
In October 2014 Mr Dauvou was convicted of driving with low-range PCA and driving an unregistered vehicle. He was fined $750 for each offence and disqualified from driving for 12 months, to take effect on expiry of the earlier disqualification period.
Then in January 2015 he was convicted as follows:
·driving while disqualified on 5 October 2014 – sentenced to 2 months imprisonment, to commence on 12 January 2015;
·driving while disqualified on 11 October 2014 – sentenced to 4 months imprisonment, commencing on 12 February 2015;
·driving while disqualified on 17 October 2014 – sentenced to 6 months imprisonment, commencing on 12 February 2015;
·resisting an officer in the execution of duty on 12 January 2015 – sentenced to 6 months imprisonment, commencing 12 May 2015;
·assaulting a police officer in the execution of duty on 12 January 2015 (two counts) – sentenced to 9 months and 12 months imprisonment, commencing on 12 May 2015 (but the second sentence was later quashed, and 9 months substituted);
·driving with high-range PCA on 12 January 2015 – sentenced to 9 months imprisonment, commencing on 12 March 2015; and
·driving while disqualified on 12 January 2015 – sentenced to 18 months imprisonment, commencing on 12 May 2015.
Since Mr Dauvou first went into custody in January 2015, twelve incidents have been recorded in relation to his conduct, including failing to attend muster (two counts), unlawfully using phone/fax, failing to comply with correctional centre routine (three counts), disobeying direction, fighting or other physical contact and stealing (two counts). In immigration detention there have been two incidents involving the possession of contraband items. The one thing that can be said in his favour is that the regularity of his offending conduct has declined over time.
THE LEGISLATION AND THE MINISTERIAL DIRECTION
It is not disputed that Mr Dauvou, having been sentenced to a term of imprisonment of 12 months or more, has a ‘substantial criminal record’: s 501(7)(c) of the Act. It follows that he does not pass the ‘character test’: s 501(6)(a). There is also no doubt that s 501CA of the Act was engaged. In those circumstances the visa cancellation decision can only be revoked if one of two alternatives exists: s 501CA(4). The first alternative is that the Tribunal is satisfied that Mr Dauvou passes the character test – but clearly, the Tribunal cannot be satisfied that he passes that test. The second alternative is for the Tribunal to be satisfied ‘that there is another reason why the original decision should be revoked’.
Section 499 of the Act empowers the Minister to give written directions about the exercise of powers under the Act, including the discretionary power to revoke a visa cancellation on character grounds. The Minister has made written directions in an instrument entitled Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 65). I must take Direction no. 65 into account in reviewing the delegate’s decision. If, after taking into account the considerations prescribed in Direction no. 65, I am of the view that Mr Dauvou’s visa should not be cancelled, then it would be the case that ‘there is another reason why the original decision should be revoked’. In that circumstance, the original decision would be set aside and in its place a decision would be made to revoke the cancellation of Mr Dauvou’s visa.
OUTLINE OF DIRECTION NO. 65
The purpose of Direction no. 65 is stated to be ‘to guide decision-makers performing functions or exercising powers’ under, among other provisions, s 501CA of the Act: clause 6.1(4). Its purpose is not, and cannot be, to direct decision-makers to exercise their powers in a particular way, either in favour of or against visa holders or visa applicants. The Direction can only tell decision-makers how they must go about exercising their powers. As is stated in clause 6.1(3):
Where the discretion [in s 501CA] to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
This Tribunal is a ‘decision-maker’ for the purposes of the Direction: Annex B – Interpretation.
The Principles set out in the Direction are said to ‘provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA’: clause 6.2(3). Those ‘Principles' are found in clause 6.3. They refer to Australia’s ‘sovereign right’ to decide who should be allowed to come to and stay in Australia; the expectation that visitors will be law-abiding; and Australia’s ‘low tolerance’ of criminal conduct by people who have been here for only a short period of time.
Clause 7(1) of the Direction explains that, ‘[i]nformed by the principles in paragraph 6.3 above’, a decision-maker ‘must take into account’ the considerations in the relevant Part of the Direction.
Clause 8 explains how the considerations should be taken into account:
…
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of the Direction sets out the considerations to be taken into account in relation to a request for revocation of a mandatory cancellation decision. As foreshadowed, the considerations are separated into Primary considerations and Other considerations.
The Primary considerations (clause 13(2)) are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Clause 14 deals with Other considerations. Subclause (1) provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Mr Dauvou’s criminal history shows a disturbing trend of repeated contraventions of, and apparent disregard for, the law. It is not a record to be proud of.
In the space of two weeks in October 2014, Mr Dauvou drove on three separate occasions while disqualified. He appeared in Toronto Local Court on 29 October 2014 to answer one of those charges; the other two were heard in Liverpool Local Court on 21 January 2015. But by that later date he had driven for a fourth time while disqualified, this time on 12 January 2015, when he also committed his third PCA offence – a high-range offence to follow upon his earlier low-range and mid-range offences, committed in October 2014 and September 2013 respectively.
His offending conduct has gradually worsened over time. It started when he was 17, with a bit of skylarking and petty crime. He was cautioned a number of times by the police while he was still a minor, but he seems to have paid little heed to the warnings he was given. He has offended while on bail and while subject to good behaviour bonds. He has repeatedly driven while disqualified. When apprehended more recently by the police, he has failed to obey reasonable instructions, resisted arrest and assaulted police.
Mr Dauvou was aged 19 and 20 at the time he committed his most serious offences. He acknowledges that he had a drinking problem and had got in with the wrong crowd. He now feels ashamed of himself. He has been in prison or immigration detention for more than 18 months and that period, he says, has got him away from bad company and alcohol.
Expert evidence
In July this year Mr Dauvou was assessed by Dr Olav Nielssen, a psychiatrist, whose diagnosis of Mr Dauvou is ‘alcohol use disorder, in remission’. The basis of the diagnosis as ‘in remission’ is Mr Dauvou’s ‘detention in a largely alcohol free environment and his account of intending to stop drinking altogether’. Dr Nielssen also noted:
·There was no history of developmental delay, brain injury, psychotic illness, severe mood disorder when not intoxicated or symptoms of any other psychiatric disorder.
·There was no history of significant use of substances other than alcohol.
·There was also no pattern of antisocial conduct in adolescence, or a pattern of offending behaviour not related to alcohol use.
In his report Dr Nielssen concluded that the main cause of Mr Dauvou’s pattern of offending, including his decisions to drive without a licence, is his use of alcohol. He expressed the following opinion:
If he were to stop drinking altogether, as he reported that he intended to do, it seems unlikely that he would commit further offences or present a danger to the community.
Dr Nielssen emphasised in cross-examination that he had not identified in Mr Dauvou any ‘irresistible addiction’ to alcohol but rather saw Mr Dauvou’s behaviour as amounting to a reckless recreational use of alcohol.
Dr Nielssen said, for a young person like Mr Dauvou who had not established a pattern of addiction, there was ‘every chance’ that he would follow through with his commitment not to drink. Dr Nielssen acknowledged that it was easier in an alcohol-free environment to abstain from drinking and agreed that Mr Dauvou’s commitment to abstinence had not yet been tested outside the controlled environment of prison or immigration detention. Nevertheless, and accepting that Mr Dauvou could reoffend if he were released into the community and started drinking again, Dr Nielssen noted that Mr Dauvou was not an antisocial person, was not involved with any kind of criminal gang or subculture and had no other substance use problems. He also thought that as Mr Dauvou matured the likelihood of reoffending would decrease in any event.
Ms Caroline Hare is a forensic psychologist who prepared a report on Mr Dauvou in April this year. By the time she gave oral evidence and was cross-examined in the Tribunal, she had read Dr Nielssen’s report and considered it consistent with her own.
Ms Hare carried out some objective psychometric assessments and found Mr Dauvou to be generally within range for his age. She identified some problematic personality traits but did not regard them as clinically significant. Ms Hare assessed Mr Dauvou’s risk of future offending as ‘moderate’ in the absence of interventions, but thought that continued support from his family, engagement in substance misuse counselling, re-engagement with his church and returning to structured prosocial activity such as rugby league (which Mr Dauvou has identified as one of his ambitions) were important factors likely to assist in reducing the risk rating. Ms Hare noted Mr Dauvou’s recent improved awareness of the impact of his behaviour on others, his plans to develop a wider positive social support network if he were permitted to re-enter the Australian community, his having distanced himself from previous antisocial associates, and his maintenance of alcohol and drug abstinence (earlier drug use was irregular and modest) are recent improvements in his insight and behaviour; she would want to have seen sustained improved behaviour in the community before reducing her assessment of Mr Dauvou’s risk of reoffending to ‘low’.
Assessment of this consideration
Mr Dauvou’s offending has been serious. In particular, driving with more than the prescribed concentration of alcohol is a dangerous activity. The risk of harm to others, whether passengers or other road users or the broader community, is serious. The consequences can be, and often are, catastrophic.
Alcohol has been Mr Dauvou’s main problem. If he can stay away from alcohol then the risk of his offending in the future is likely to be low. If he cannot stay away from alcohol then the risk is at least moderate, and may be even higher.
I accept that Mr Dauvou’s desire to stay away from alcohol is genuine. However, his determination to remain abstinent is untested outside the controlled environment of prison or immigration detention.
Various family members have expressed their determination to assist Mr Dauvou if he is permitted to remain in Australia, and to encourage and guide him on a more productive path than he has taken in the past. But they have said that before, and he still offended, repeatedly.
On the evidence available, this consideration weighs against revoking the cancellation of Mr Dauvou’s visa.
The best interests of minor children in Australia
Mr Dauvou has a four-year-old son, J, who lives with his mother, an Australian citizen, in country NSW. Mr Dauvou also has two children in Fiji to a previous partner – a daughter he has not met and a five-year-old son.
Mr Dauvou’s relationship with J has started to develop only recently, when Mr Dauvou was already in custody. Mr Dauvou has never lived with his son and is unlikely to do so in the future. It is J’s mother who has had the daily care and control of her son, and that is likely to continue. Nevertheless, J’s mother is keen to allow the relationship between Mr Dauvou and his son to continue to develop. She has commented that Mr Dauvou’s removal from Australia would affect Mr Dauvou’s growing relationship with his son.
Mr Dauvou has a younger sister who is 17 years old, and he also has seven nieces and nephews in Australia who are minors. All of them, though, receive daily care and guidance from their own parents and there is nothing to suggest that Mr Dauvou plays a parental role in respect of any of them.
I find, therefore, that the only minor child in Australia whose interests must be taken into account for the purposes of this consideration is J.
Clause 13.2(1) of the Direction requires me to make a determination about whether revocation of the cancellation of Mr Dauvou’s visa is, or is not, in the best interests of the child.
The relationship between Mr Dauvou and his son has necessarily been a limited one, given that Mr Dauvou remains in immigration detention. The relationship has only started to develop over the last 18 months. Mr Dauvou may be able to play a positive parental role in the future, but that depends on his ability to stay away from alcohol. If he did not do that, then I would expect J’s mother to be less encouraging towards Mr Dauvou’s continued contact with his son.
On balance, I determine that revocation of the cancellation of Mr Dauvou’s visa is in J’s best interests. That conclusion weighs marginally in Mr Dauvou’s favour.
Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while in Australia: clause 13.3(1) of the Direction.
Members of the Australian community would likely look at Mr Dauvou’s criminal history, and particularly the repeated driving while disqualified and PCA offences, and ask: Why? Why didn’t you stop? Why didn’t you take heed of the warnings?
The answers were provided by Ms Hare in her psychological report, at page 8, paragraph 22. Mr Dauvou did what he did because he thought he wouldn't get caught; he was vulnerable to peer influence; he needed to ‘fit in’ with his peers and gain their trust and respect; and he had an attitude that the rules simply did not apply to him. Mr Dauvou’s immaturity is likely to have been a major contributor to those factors.
The question for the Tribunal, then, is – how would the Australian community expect Mr Dauvou to be treated against that background? Clause 13.3(1) gives little guidance. It simply notes that where a non-citizen has breached ‘this trust’, or where there is an ‘unacceptable risk’ that the non-citizen will do so, it ‘may be appropriate’ not to revoke the mandatory visa cancellation.
Would the Australian community be inclined to give a young man like Mr Dauvou one last chance? Or would it be outraged at the very suggestion? Ultimately, I think the community would expect Mr Dauvou to be given one last chance to show he has matured enough to put the past behind him. This consideration is marginally in favour of Mr Dauvou.
OTHER CONSIDERATIONS
International non-refoulement obligations
This consideration does not appear to be relevant in Mr Dauvou’s case.
Strength, nature and duration of ties
Mr Dauvou has lived in Australia since he came here from Fiji in 2009, at the age of 15. Since then he has been back to Fiji for three visits of varying length, the longest being for five months in 2010. His primary schooling and some of his secondary schooling were undertaken in Fiji. The last two or three years of secondary school were undertaken in Australia.
After he left school Mr Dauvou was employed as a renderer for about 15 months, then as a removalist for about seven months, and then as a steel fixer for about three months. It seems that he has not had any difficulty securing or keeping reasonably regular employment.
His immediate family, comprising his father, mother, brother and sister, live in Australia. His ex-partner and his son live in Australia. His current partner, Senimili Soro, who has been with Mr Dauvou since October 2014 and is expecting Mr Dauvou’s child in late November 2016, lives in Australia.
All of them would be affected if the visa cancellation decision were not revoked.
Mr Dauvou’s parents have maintained close contact with their son, visiting him every fortnight while he was in prison and every week since he was moved to immigration detention. They have expressed strong support for their son, although they both acknowledge that it will be a ‘tough assignment’ to help him reform his ways. They also acknowledge that they have tried to change his behaviour before but have been unsuccessful. Nevertheless, they say he has changed. Mr Dauvou’s father said his son has now learnt his lesson from his behaviour; his perception is that his son can see that what he did was wrong. That perception is consistent with Ms Hare’s identification of the recent improvement in Mr Dauvou’s insight into his earlier conduct. Mr Dauvou’s mother has observed changes in her son. ‘He is not like before’, she said. She agreed with the suggestion put to her that her son was finally starting to grow up, and finally starting to be a man and to be responsible.
Mr Dauvou’s current partner paints a similar picture. Her observation comes from having visited Mr Dauvou almost every weekend while he was in prison and almost every day since he has been in immigration detention. She notices that he has grown, and is willing to change. While acknowledging that it will not be easy for him to change, she said she would support him in any way that she can. Her message could not have been clearer: ‘If he doesn't change I might have to leave him,’ she said.
Impact on Australian business interests
This consideration does not appear to be relevant in Mr Dauvou’s case.
Impact on victims
There is no evidence of the impact that non-revocation of the visa cancellation would have on specific victims, if any, of Mr Dauvou’s offending. Of course, there would be an impact on the Australian community generally, but there is nothing that can usefully be added to what has already been covered in these reasons.
Extent of impediments if removed
There are no known impediments that Mr Dauvou would face if he were removed from Australia to Fiji. He is a young man, in apparently good health, and he would face no language or cultural barriers in the country of his birth.
Additional relevant considerations
Employment prospects
Mr Colin McPherson is the Managing Director of Sydney Ship Repair and Engineering Pty Limited (SSRE). Mr Dauvou’s father has been a ‘loyal and valuable staff member’ of SSRE for six years. Mr Dauvou himself was previously a casual labourer with SSRE, for a few weeks at a time over a period of two or three years.
In a statutory declaration dated 9 August 2016 Mr McPherson stated that when Mr Dauvou worked for SSRE he had worked well and to a satisfactory standard. Fully aware of Mr Dauvou’s criminal history, Mr McPherson is prepared to employ Mr Dauvou for a probationary period of three months if the cancellation of Mr Dauvou’s visa is revoked. Mr McPherson confirmed in cross-examination that Mr Dauvou’s probationary employment would be closely supervised and his progress reviewed, but if his performance was satisfactory he would be offered a permanent job.
The opportunity of stable employment is a factor that counts in Mr Dauvou’s favour.
The unborn child
The interests of an unborn child must be considered as an ‘Other consideration’, not a ‘Primary consideration’.
In respect of Mr Dauvou’s unborn child I reach the same conclusion as with his son J, and for the same reasons. That is a factor that weighs in Mr Dauvou’s favour.
OVERALL ASSESSMENT OF MR DAUVOU’S CASE
This is a borderline case involving a young man with a clear choice ahead of him.
One option is to honour his commitment to stay away from alcohol, take responsibility for his actions, acknowledge the harm he has done to himself and others, and become the person his family and partner say he is capable of becoming.
The other option is to continue on the path of his past, ignore his responsibilities to the community, and keep breaking the law.
He says he has chosen the first option.
I have concluded that, on balance, he should be given the opportunity to turn his life around. I come to that view in reliance on the opinions of Dr Nielssen and Ms Hare, who both recognise the potential for Mr Dauvou to renounce his past, and also what I consider to be the genuine commitment of Mr Dauvou’s family and current partner to guide him and monitor his conduct. I assess the risk of future offending as moderate, but as I have already indicated, if Mr Dauvou can stop drinking, there is every possibility that the risk would come down to ‘low’.
I think the Australian community would expect a young man like Mr Douvou to be given one last chance.
If Mr Dauvou fails to take this opportunity, he cannot expect any further indulgence from the country he would like to call his home. The community’s tolerance would then, I think, be exhausted.
DECISION
The decision under review is set aside. Instead the Tribunal decides, in accordance with s 501CA(4) of the Act, to revoke the cancellation of Mr Dauvou’s visa.
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ........................[sgd]................................................
Associate
Dated 25 October 2016
Date of hearing 1 September 2016 Counsel for the Applicant Mr I Coleman SC Solicitors for the Applicant Russell C Byrnes Solicitor Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Remedies
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Statutory Construction
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