Epenisa and Minister for Immigration and Multicultural Affairs
[2006] AATA 268
•23 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/80
GENERAL ADMINISTRATIVE DIVISION ) Re
Feofaaki Vaiola Epenisa
Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date23 March 2006
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – special category visa – cancellation of visa on grounds of substantial criminal conduct – applicant has substantial criminal record including armed robbery and intentionally causing serious injury – serious and continuing nature of his offending behaviour – use of and constitutional validity of s 501 powers to deport – applicant’s criminal record very serious – significant risk of recidivism – Australian community would expect applicant to be removed – interests of three siblings do not outweigh other considerations – no evidence as to applicant’s medical condition.
Migration Act 1958 ss 499, 501G, 501(1), 501(6)(a), 501(2), 501(7)
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Northern Territory of Australia and Others v Mengeland Others (1995) 185 CLR 307
Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Jeremaia Tuivuya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 954
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
23 March 2006 Professor GD Walker, Deputy President Summary
1. The applicant, Feofaaki Epenisa, aged 25, who is a citizen of New Zealand, first arrived in Australia on 30 November 1996 on a subclass TY444 special category visa.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided to cancel Mr Epenisa’s special category visa on the ground that he does not pass the character test because of his substantial criminal record including offences of armed robbery and intentionally causing serious injury. That is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant conceded, prior to the hearing, that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having received on 16 May 2003, a sentence of three years and six months imprisonment for robbery and intentionally causing serious injury. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.
Background
4. Mr Epenisa was born in Auckland, New Zealand, on 27 October 1980 and is aged 25. He is a citizen of New Zealand. He first came to Australia on 30 November 1996, at the age of 16, as the holder of a subclass TY444 special category visa. He arrived with his mother, father, three brothers and sister, the family settling in Melbourne. Mr Epenisa completed schooling to year 11. He has undertaken various forms of employment including fruit picking, carpentry, shop fitting, disassembling and assembling chairs and car spray painting.
5. Between 1999 and 2003, Mr Epenisa was convicted of a number of serious offences in Victoria, using 12 aliases. His convictions include the following:
Court
Date
Charge
Result
Ringwood Magistrates Court, Victoria
18/3/1998
Traffic Heroin
Without conviction, community based order for 24 months. To perform 150 hours unpaid community work. To undergo assessment and treatment for drug abuse. To submit to testing for drug use.
Ringwood Magistrates Court
11/2/1999
1. Theft of motor vehicle
2. Unlicensed driving
1. 3 months detention youth training facility. Community based order cancelled.
2. With conviction fined $100
Ringwood Magistrates Court
11/2/1999
Theft from shop
3 months detention youth training centre.
Ringwood Magistrates Court
3/3/1999
1. Theft of motor vehicle
2. Unlicensed driving
3. Go equipped to steal/cheat
1, 2 and 3. On each charge 2 months detention in youth training centre. License cancelled and disqualified for 6 months from 3/3/1999.
Forfeiture order made by consent. Order all property seized be forfeited and destroyed.
Melbourne County Court
14/4/1999
Armed Robbery
9 months youth training centre.
Ringwood Magistrates Court
7/5/1999
Possess Regulated weapon
1 month detention youth training centre. Forfeiture order made without consent. Order all property seized be forfeited and destroyed.
Melbourne Magistrates Court
30/10/2000
Theft
With conviction, fined $300.
Melbourne County Court
24/1/2001
1. Recklessly cause injury.
2. Assault in company
1. and 2. Aggregate 6 months sentence suspended for two years under s 27 of Sentencing Act.
Ringwood Magistrates Court
3/5/2002
1. Drunk in a public place
2. Wilfully damage property
1. and 2. With conviction fined an aggregate of $400.
Ringwood Magistrates Court
7/8/2002
1. Theft
2. Criminal damage (intent to damage/destroy)
3. Attempt theft
4. Go equipped to steal/cheat
1, 2 and 3. Aggregate 6 months imprisonment to be served concurrently. To be served by way of an Intensive Correction Order – the defendant is required to attend Ringwood Community Correctional Services by 9/8/2002 by 3pm; to attend for a period of six months; all core conditions under s 20 of Sentencing Act to apply.
4. Aggregate 6 months imprisonment to be served concurrently. To be served by way of order as above.
Forfeiture order made without consent. Order that property be seized and destroyed.
Ringwood Magistrates Court
13/9/2002
1. Unlawfully on premises.
2. Theft.
1. With conviction, fined $500.
2. With conviction, fined $250.
Ringwood Magistrates Court
23/1/2003
1. Failure to comply with ICO
2. Breach re 7/8/2002
3. Theft
4. Criminal damage (intent damage/destroy)
5. Attempted theft
6. Go equipped to steal/cheat
1. Proven, convicted and fined $200.
2. – 6. Breach of ICO. Order cancelled. To serve unexpired portion of 109 days.
Melbourne Magistrates Court
10/4/2003
Criminal Damage (intent to damage/destroy)
7 days imprisonment concurrent. Effective total state term imposed is 7 days. Cumulative upon state sentence presently being served and imposed prior to this date.
Pay compensation $2014.
Melbourne County Court
11/4/2003
1. Breach re 24/1/2001
2. Recklessly cause injury
3. Assault in company
Breach of sus- pended sentence. Sentence reinstated. Aggregate of 6 months.
Melbourne County Court
16/5/2003
1. Intentionally cause serious injury
2. Robbery
1. and 2. Convicted, first charge imprisonment 3 years, second charge imprisonment 1 year 6 months, 1 year of sentence concurrent. Total 3 years and 6 months concurrent with sentence now serving. Non-parole period 2 years 3 months.
To pay $2924.30 compensation. Order for taking of intimate sample.
Melbourne County Court
16/7/2003
1. Aggravated burglary – person present
2. Theft
3. Fail to answer bail
Aggregate 3 months concurrent with sentence undergoing.
To pay $110 compensation.
Ringwood Magistrates Court
26/3/2003
Possess art prejudicial to security/good order
With conviction, fined $500.
Ringwood Magistrates Court
16/10/2003
1. Theft from shop
2. Unlawful assault
Aggregate 2 months imprisonment concurrent. Effective total state term imposed is 2 months.
6. On 16 May 2003, he was convicted in the Melbourne County Court of intentionally causing serious injury and robbery, for which he was sentenced to a term of three years imprisonment on the first charge and one year and six months imprisonment on the second charge, to be served concurrently.
7. On 17 August 2004, an officer of the then Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Epenisa that the Minister or his delegate was considering cancelling his special category visa because of his substantial criminal record and taking into consideration his Victorian criminal record and the sentencing comments of Judge RPL Lewis of 16 May 2003 and inviting him to comment (G p22). Mr Epenisa acknowledged receipt of this letter on 20 August 2004.
8. On 22 October 2004, Mr Epenisa was further informed that the Minister or his delegate would be taking into consideration a report from HM Prison Loddon of 23 September 2004, a letter from Caraniche Drug and Alcohol Services dated 22 August 2004 and a report from the Victorian Police dated 29 September 2004 (G p25). When acknowledging receipt of these documents on 5 November 2004, he wrote: “I have no family relatives at N.Z. Would like to stay here with mum and dad”.
9. In response to the notice, Mr Epenisa wrote an undated statement to the department in which he submitted that he has learned from his past mistakes, had matured and become very responsible. He said he has been participating in drug and alcohol programs to address his offending behaviour. He said he has no family in New Zealand and that “I know now that this is my first and last time inside and [am] ready for a positive out look on life” (G p26). A letter was also sent to the department by Feofaaki Epenisa and Ana Epenisa, the applicant’s parents, stating that they were very satisfied with their lives in Australia and that while their son had chosen a life that had disappointed them in many ways, no matter what he had done they still wanted him “to be nearby”. They stated there would be no one to assist their son in New Zealand and it would mean a great deal to them if he were allowed to remain in Australia (G p66).
10. On 14 June 2005, a delegate of the respondent decided to cancel Mr Epenisa’s special category visa because of his substantial criminal record and the continuing risk that he would re-offend, and having exercised his discretion under s 501(2) to cancel his visa (G p14). Mr Epenisa was not notified of the decision until 23 January 2006 when he lodged an application for a review of that decision by the tribunal. Mr Epenisa is currently detained in the Villawood Immigration Detention Centre, Sydney.
11. At the hearing, the applicant was represented by Paul Charman, of counsel, instructed by Abby Hamdan of West Side Community Lawyers, Adelaide, and the respondent was represented by Kate McNamara, solicitor, of Phillips Fox solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Oral evidence in person was given by Feofaaki Epenisa and by his father, Feofaaki Epenisa senior.
Relevant Law and Policy
12. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
13. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence
16. The applicant gave evidence by way of affidavit (Exhibit A3) and orally at the hearing. His father, Mr Feofaaki Epenisa senior, also swore an affidavit (Exhibit A4) and gave oral evidence by telephone from Victoria.
17. The applicant’s parents moved from Tonga to New Zealand in 1973, where the applicant was born in 1980. He attended St Peter’s College in Auckland, completing Year 11. While at St Peter’s he played rugby at what he described as a “high level”. The family moved to Australia in November 1996 when he was 16. He enrolled at Ringwood High School, Victoria, in Year 11 and also played rugby, again at a “high level”, for Box Hill.
18. After Year 11 he sought employment for about three or four months and between 1998 and 2001 worked as a fruit picker, assembling and reassembling chairs for painting, demolition, shopfitting and car spray painting. His longest time in one position was 12 months. The work he preferred was car spray painting, but he was unable to obtain an apprenticeship in it because his employer thought he would not be able to cope. He does not remember when he last worked in the community. While in prison he spent some time in metal fabrication but was moved to another centre after becoming involved in a number of fights. In one affray he was stabbed in the back three times, receiving prison medical treatment for his injuries.
19. He has three brothers. The eldest, he said, is aged 16 but he does not recall the ages of the other two. He also has a sister, who he said was aged 21. His father, on the other hand, said that the boys were aged nine, 10 and 12, while the daughter is 23 this year. The father’s evidence is more likely to be correct on that point.
20. The applicant said his family are all now in Melbourne and he has no relatives or friends in New Zealand. I specifically asked him if he had any aunts or uncles in New Zealand. He replied that he did not, but had aunts and uncles in Sydney and Melbourne with whom he had no contact. His father, on the other hand, said that he has a married brother in New Zealand with whom he is on close terms, although less so with his sister-in-law. His wife also has a brother in New Zealand, but the witness did not say whether he was married or not. Neither he nor his wife have any siblings in Australia. All his other siblings are still living in Tonga. Both the applicant’s parents and all his siblings are Australian citizens.
21. Consequently, it is safe to conclude that the applicant has two uncles and at least one aunt in New Zealand, but no uncles or aunts in Australia, which is almost the reverse of what he said in his oral evidence.
22. The applicant’s father visited New Zealand for two weeks in 2004, and stayed with his brother. He also has a number of New Zealand friends whom he telephones every month or two, but says they would not help his son if he were to return to New Zealand because they do not know him and are not blood relatives. He does not know whether his son has any friends of his own in New Zealand.
23. Mr Epenisa senior said he is close to his son, but claims to know nothing about what happened to him while he was acquiring his criminal record, even though he was living with him and his wife throughout that period. In particular, he claimed to know nothing about his son’s convictions.
24. He did not visit the applicant at all when he was in jail, nor did his wife or children. The applicant telephoned him a couple of times a month (the applicant said it was weekly) and on those occasions would “say hello” to the other children. He said that if the applicant were released he could live with him and his mother and he would give him financial and emotional assistance. On the other hand, if he were required to return to New Zealand, Mr Epenisa senior said categorically that he would not give him any financial assistance, which seemed a rather perverse position.
25. The applicant said that after leaving school he had fallen in with the wrong crowd and by the age of 17 was addicted to heroin and “went downhill for a while”. He committed offences under the influence of drugs and acquired “some convictions”. He has 23 convictions. On three separate occasions he was sentenced to custodial terms totalling 14 months in youth training facilities. On six separate occasions he was sentenced to terms of imprisonment respectively of six months, seven days, six months, three years six months, three months and two months. The first six-month sentence was to be served by way of an intensive correction order – the applicant was required to attend Ringwood Community Correctional Services by 9 August 2002 and to attend for a period of six months.
26. His most serious conviction was imposed by Lewis J at Melbourne County Court on 16 May 2003 and resulted in his being sentenced to three years and six months imprisonment, of which he served two years and three months. He was released on 24 March 2005 but was detained by the immigration authorities three months later.
27. His explanation for that conviction was that in late 2002 he was travelling in a taxi with his younger cousin, Renisen Bell. When the cab arrived at their destination, an argument broke out with the driver about what he thought was their refusal to pay. The applicant says he has no idea how the driver came to form that opinion. He stepped out of the taxi, but the cab drove off with the applicant’s 17 year-old cousin still aboard.
28. The next morning his cousin returned home in a shaken and bruised condition, but the incident was not reported to the police. Following that event the applicant had a number of drinks and had an argument with his girlfriend on his way into town. Angry over the argument with his girlfriend and his cousin’s misadventure, he repaired to some licensed premises near Campbellwell [scil. Camberwell] Station (Exhibit A3) where, in an intoxicated state, he began to throw around some signs standing in the street. For that he was spoken to by police, who took no action other than suggesting that he take a taxi home.
29. On his way home in the taxi he assaulted the driver by punching him into a state of unconsciousness, and then stole $100 from him. The driver later required time off work for medical and dental treatment and to recover from his injuries. In his affidavit the applicant said that he committed the assault and robbery because the driver was the same one who had assaulted his cousin the previous night. At the hearing, however, he said he did not know if it was the same driver. That was more consistent with the police report, which stated that the applicant said he had no remorse for the victim as he was “only a taxi driver”. That odious remark suggests that he had nothing against that particular driver. In cross-examination it was pointed out to him that he did not tell the police or the sentencing court that he committed the offence because he was upset over his cousin and his girlfriend. He agreed, but maintained that it was the real reason.
30. His explanation that he was angry over the incidents with his girlfriend and his cousin is also insufficient to explain his most serious offences, given that on three other separate occasions he has been convicted for crimes of violence against the person and on one other occasion of armed robbery. He has displayed a propensity for criminal violence.
31. He pleaded guilty to the assault and robbery and was committed to Loddon Prison. There he completed the Comprehensive Drug Treatment Program, a 40-hour program tackling drug and alcohol addictions. He also regularly attended a cognitive skills program at Loddon and was an active group member in its activities. The operational support supervisor, Mr Brian Revell, on the other hand, said that the applicant had “a very checked [scil. “chequered”] run with a number of Governors disciplinary hearing for a range of matters including breaching areas and incurring a great amount of Minor Infringement entries” (G p38). Mr Revell noted that “Unit staff report that he has difficulty in his approach to staff and challenges their authority at any given time”. He had experienced difficulty in maintaining employment, having been employed in a number of areas but being unable to hold any position for more than a short period. Apparently he did not undertake any vocational courses.
32. In late 2001, he was knocked down by a car while crossing a Ringwood street. He spent a month in Maroondah Hospital being treated for his injuries, which left him incapable of movement and experiencing what Exhibit A2 described as “excruciating back pain for at least a year from which he still suffers”. In his affidavit he said he was unable to walk properly until at least 2002 and was incapacitated from work. He did not, however, require any rehabilitation.
33. He maintained in cross-examination that on the evening when he threw signs around in front of the hotel and subsequently beat the taxi driver insensible he was still suffering excruciating pain.
34. He was not physically assessed, nor did he receive any examinations for the injuries he had sustained in the accident. He received initially no treatment for his back condition while in jail, but was later prescribed medication which he said did not help. While in immigration detention he has been given physiotherapy which has helped his condition somewhat.
35. He had intended to seek compensation for his injuries but said that he had not had the time to pursue a compensation claim.
36. While I do not doubt that he was struck by a car and admitted to hospital, I note that there is no medical evidence or other corroboration to support his assertions about continuing pain and disability. In view of his lack of veracity on other matters, such as his family structure in Australia and New Zealand, I do not accept his unsupported assertions on that subject, especially in view of his undisputed ability to commit violent crimes as far back as 2002. It is also notable that when asked what he would do if his application to remain in Australia were successful, he said that he wanted to be a professional rugby player, and made no mention of any difficulties that his back might present in the course of realising that aspiration.
37. He last saw his parents when he was released from prison in March 2005. His father says that at that time he discussed with the applicant his direction in life and from that time he believed his son had made good progress and matured as a person. Mr Epenisa senior thinks that if his son were deported, the effect on the family would be severe. His other children need his support and would be confused and extremely upset if he were returned to New Zealand. His wife suffers from depression which he says is caused by their son’s detention. If he is removed, he thinks his wife’s mental and physical condition will deteriorate. There is no medical evidence about Mrs Epenisa’s condition, however. Mr Epenisa says that he and his wife would worry about the lack of support that the applicant would have in New Zealand because they have no family or friends to support him there. If he is released, he would live with them and they would assist him both financially and emotionally, and Mr Epenisa senior would help the applicant to find employment and start a new life. But, as was noted above, he said he would not support the applicant financially if he were in New Zealand.
Constitutional issues and related matters
38. In his statement of facts and contentions (Exhibit A2), the applicant advanced three preliminary propositions of law:
(a)In the case of a non-citizen such as the applicant who has been in Australia for less than 10 years, visa cancellation under s 501 of the Act is not available. The appropriate procedure is deportation under s 201.
(b)Use of s 501 to remove a person in the circumstances of the applicant is a punitive power that can be exercised only by a court, not by an administrative tribunal.
(c)In exercising his discretion the Minister’s delegate failed to take into account relevant considerations.
39. The third point is irrelevant to the merits review process undertaken by this tribunal, which does not depend on the existence of an error of law in the making of the decision under review. It is a matter for judicial review proceedings.
40. The first point is one of which the tribunal could take cognizance, as it would involve considering whether the case is one in which s 501 rather than s 201 should be exercised. That type of inquiry is consistent with the tribunal’s function of seeking to make the correct or preferable decision. The second point, however, involves issues of constitutional law, including whether the use of s 501 in cases such as this is a valid exercise of the aliens power or an unconstitutional exercise by the executive branch of punitive powers.
41. At the beginning of the hearing, Mr Charman on behalf of the applicant said he was prepared to argue those matters, including the constitutional point, but understood that the tribunal’s practice might well be to presume the constitutional validity of the federal legislation under which it was acting, in which case he would not develop those arguments at this hearing and would reserve them for another forum. He indicated that this case may be treated as one of a set of test cases to be argued in the Federal Court and perhaps ultimately in the High Court.
42. The authorities do not agree on the jurisdiction and role of the tribunal in such cases. Bowen CJ said in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 317, that while the tribunal has jurisdiction in such cases, it might consider it proper that the applicant should first approach a court for decision of the question, notably if an application involved a constitutional issue. On the other hand, Deputy President Thompson in Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90, 96, had this to say:
…
The Tribunal undoubtedly has power to consider and form an opinion as to the validity or invalidity of an Act of Parliament, just as any other person responsible for the administration of that Act may; but that is the full extent of its power. If it comes to the conclusion that the Parliament did not have power to enact the Act or any part of it, it has no power, in my view, to make its decision on the basis that the Act or that part of it is invalid.
…
43. A difficulty with that position, it seems to me, is that if the tribunal were to reach the conclusion that a purported enactment was a nullity, but nevertheless proceeded to give effect to it in its decision, it would knowingly be acting in breach of the law and might come close to committing misfeasance in public office (whether or not an action would actually lie): see Northern Territory of Australia and Others v Mengeland Others (1995) 185 CLR 307 at 345-348.
44. I therefore ruled that the appropriate course for the tribunal was to assume the validity of federal legislation unless the contrary were obvious. To take an extreme example, in a particular case the parliament roll might show that an amending bill had not passed through the senate but had been assented to and published inadvertently. Without disrespect to Mr Charman and his submissions, it did not seem to me that the point raised in the present case involved any obvious invalidity in that kind of sense.
45. Similarly, as there had been a large number of tribunal cases affirming the use of s 501 in circumstances where s 201 might also have been available, and the applicant’s argument about the unavailability of s 501 was not an obvious or inescapable one, I thought it more appropriate to assume the correctness of that approach. Depending on the outcome of this application, the applicant could still avail himself of the jurisdiction of the courts.
Application of the law and findings of fact
46. As was stated above, the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Epenisa was sentenced to three years and six months imprisonment for robbery and intentionally causing serious injury. In his statement of facts and contentions (Exhibit A2) and in counsel’s oral submissions, the applicant conceded the character point.
47. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Epenisa’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
48. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
49. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (f) assault or any other form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
50. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
51. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, Mr Epenisa has committed and accumulated 23 convictions. A number involve violence, including the robbery and assault of the taxi driver, for which he was sentenced to three years and six months imprisonment. The arresting officer, Senior Constable Simon Quinnell, reported the injuries to the victim as being loss of consciousness, a black eye, loss of several teeth, bruising and swelling and that the applicant had made full admissions in respect of the incident and had showed no remorse for the victim as he was “only a taxi driver” (G p55).
52. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; …
53. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;
(b)the repugnancy of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
54. In his sentencing remarks in the Melbourne County Court on 16 May 2003, His Honour Judge RPL Lewis said:
You have committed two serious crimes which are prevalent offences. The victim, Mr Ali, has suffered physical injuries and a significant nervous reaction. He has also suffered financial loss by way of medical and dental treatment and loss of income as a taxi driver. The principles of special deterrence, general deterrence and curial denunciation of this type of behaviour are relevant sentencing considerations.
55. The respondent in her statement of facts and contentions (Exhibit R1) states that the applicant’s conduct is serious, given that his criminal behaviour commenced only one and a half years after his arrival in Australia and has included armed robbery, criminal damage and intentionally causing serious injury, and that the crime upon the taxi driver was a violent and unprovoked attack upon a person lawfully earning his living, for which he showed no remorse, and that his crimes have caused considerable disruption to Australian citizens and residents.
56. Armed robbery and crimes of violence are specifically mentioned in paragraph 2.6 of Direction No 21 as types of offences that are considered to be very serious. Paragraph 2.7 requires the tribunal to have due regard to “the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence”. Mr Epenisa accumulated 23 criminal convictions in two and a half years, a very bad record by any standards. While it has been three years since his last conviction, for most of that period he has been either in jail or in immigration detention. While some people do commit serious crimes while in custody, the opportunities for it are much reduced, and indeed that is one of the reasons for the prison system. It is therefore obvious that the applicant’s criminal record must be regarded as very serious.
57. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. Judge Lewis noted in his sentencing remarks that he was “less than enthusiastic” about Mr Epenisa’s prospects of rehabilitation. He went on to say:
For a young man you have an extensive and relevant criminal record. Between March 1998 and September 2002 you boast 23 convictions. Several are for theft, one for armed robbery and several are violence related. Dispositions have included a community based order which was breached, four periods of detention in a youth training centre, a suspended sentence which was breached, and an intensive corrections order which was breached.
In my view, your prospects of rehabilitation are poor, however, mindful of your age I am prepared to find that there is some hope that you will turn your life around.
58. As was noted above, a report from Mr Brian Revell, operations support supervisor at Loddon Prison received by the department on 30 August 2004 states:
Since being at Loddon Prison, Prisoner Epenisa has had a very checked [sic] run with a number of Governors disciplinary hearings for a range of matters including breaching areas and incurring a great number of Minor Infringement entries. Unit staff report that he has difficulty in his approach to staff and challenges their authority at any given time. Prisoner Epenisa has not undertaking [sic] any Education studies during his time at his location and also has had difficulty in maintaining employment. He has been employed in a number of areas and to date has been unable to hold any position for more than a short period.
Up to this date Prisoner Epenisa has not commenced any offender related programs and has shown very little interest in doing so.
59. The statement about not undertaking studies does not appear to be correct. While he does not appear to have undertaken any vocational courses, a report from Kate Andison, probationary psychologist at Loddon Prison, dated 23 September 2004, states that, at that stage, the applicant had completed 23 sessions of a 30 session cognitive skills program which focused on thinking and problem solving (G p40). A report of Helen Thomas, Caraniche Drug and Alcohol Services, dated 22 August 2004, said that Mr Epenisa had completed a 40 hour drug and alcohol program to address his drug and alcohol problems (G p41). His parole officer reported that after his release on 24 March 2005 (and before his detention three months later) he complied with his parole conditions (G p42). The applicant’s representative submitted that Mr Epenisa has not used drugs for two to three years and had stayed out of trouble from the time of his release from prison until his detention under the Act.
60. The applicant’s father says that if he is released, he and his wife will do everything they can to ensure that their son remains out of trouble and seeks honest employment. They will endeavour to take him to church. The likelihood of favourable parental influence should not be overestimated, however. His parents have not seen him since his release in early 2005 and have not visited him even once in jail or in immigration detention. While they no doubt have the best of intentions, they were not able to persuade him to stay out of trouble while he was accumulating his criminal record, and living with them the whole time. There is no reason to believe that they would be any more successful now.
61. While the applicant has made some steps towards rehabilitation, progress has been uneven. He did participate actively in two rehabilitation courses, but appears to have been a fractious and unfocussed prisoner who was unable to remain in any particular area of prison employment for long. Though the applicant complied with his parole conditions during the three months he was at liberty in 2005, it must be borne in mind that he was at that time already subject to notice of visa cancellation.
62. The applicant appears to be a stoical and taciturn type, and one would not expect to see great displays of remorse and contrition from him. Nevertheless, he did not appear to have developed any degree of empathy for his victims. This could still be the man who dismissed the battered and robbed object of his criminal attentions as “only a taxi driver”. There is no pre-release probation report that might give any reason to believe the contrary. More importantly, however, as was noted above, he engaged in flagrant attempts to mislead the tribunal on a material matter in the present hearing. That behaviour does not point to any across-the-board pattern of rehabilitation. In my view there is a significant risk that the applicant will re-offend.
63. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
64. In my view considerations of general deterrence weigh against disturbing the reviewable decision in this case and the applicant made no submissions to the contrary.
Expectations of the Australian Community
65. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.
66. The applicant has accumulated an extensive record in a relatively short time, as his Honour Judge Lewis noted. On behalf of the respondent Ms McNamara submitted that while community opinion might make some allowances for his youth, its willingness to be understanding was not unlimited. People in vulnerable positions such as taxi drivers would expect that conduct of the type engaged in by the applicant would not be tolerated.
67. Mr Charman argued that the community expectations factor was too often subsumed into the non-citizen’s obligation to comply with the law, when citizens also were obliged to do the same. The tribunal should take a broader view of community expectations. If a person had been in Australia for almost 10 years, the community would expect that he would not be “dumped” on another country and he should be regarded as Australia’s problem. He had been punished by imprisonment and should not be further punished by deportation, and even if he were, the visa cancellation process should be completed while he was still in prison. The community would also expect that he would be rewarded for his attempts at rehabilitation and for his reasonable work history before he was sent to prison. Evidence of his personal circumstances was also relevant to any assessment of expectations.
68. In part the broader interpretation advocated depends on shifting factors from the community protection and other considerations categories into the process of evaluating community expectations. While the categories laid down in Direction No 21 cannot be regarded as rigid or inflexible, the approach laid down by the Direction is prima facie the one that the tribunal should follow.
69. The contention that the applicant is “Australia’s problem” seems to be a reformulation of the argument that society is to blame for the actions of criminals. That proposition rests on deterministic theories of crime causation that no longer command general acceptance. The contemporary approach attributes a much greater role to the concept of criminal choice (see Re Jeremaia Tuivuya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 954 at paragraph 58).
70. In my view the community would expect that a non-citizen who had displayed such consistent contempt for the law and the rights of Australians and who had, on balance, made himself an unmitigated burden to society, would be removed.
Best Interests of the Child
71. In his statement of facts and contentions and in counsel’s opening remarks, the applicant conceded that there was no child whose interests needed to be considered under this heading. In his closing submissions, however, counsel adopted the amended approach of saying that the best interests of the applicant’s three brothers aged 12, 10 and nine, would be served by allowing the applicant to remain in Australia. His father had given evidence that there was a close relationship between them and the applicant, and that they would suffer distress if his visa were cancelled. The family would not necessarily be able to visit him regularly in New Zealand, as money would be a major consideration. In any event, the relationship could not possibly be as close as it would be if he were in Australia.
72. As against that, for much of the children’s recent lives the applicant has been in prison, in immigration detention or in juvenile institutions. They have not visited him at all in jail or in immigration detention and during those periods contact has been limited to “saying hello” in the course of telephone conversations every two weeks on average. The fact that the applicant could not recall the ages of any of his brothers, even approximately, also suggests that the relationship is not a close one. If he were living in New Zealand he would still be able to maintain the kind of telephone contact with his brothers that he has had in recent years.
73. In my view the best interests of those children do not substantially weigh against visa cancellation in this case.
Other Considerations
74. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and any compassionate circumstances.
75. The applicant’s parents, Anna Epenisa and Feofaaki Epenisa Senior, both reside in Melbourne, as do their children, Michael, Shanelle, William and Unaooto. As noted above, in a letter written to the department on 24 August 2005 they said there would be no-one in New Zealand to take care of their son. Mr Epenisa reiterated that in his evidence, but qualified it by admitting that the applicant has two uncles and at least one aunt in Auckland, and the family has friends there.
76. The applicant is quite familiar with New Zealand life, having been educated in Auckland up to the end of Year 11. He even speaks with an unmodified New Zealand accent. He is young enough to make a fresh start in that country, and if he applies himself to lawful work he should in due course be able to marry and have a family of his own. In the meantime he will have access to community services at least on a par with those available in Australia. I understand that in cases of New Zealand citizens being deported or removed back to New Zealand by reason of criminal convictions, the authorities there now place them automatically on probation, but there is no evidence before the tribunal on that point. At all events, being required to live in New Zealand rather than Australia could not be regarded as a hardship calling for compassion. Millions prefer to live in New Zealand.
77. The tribunal was also asked to take into account the applicant’s health as a result of injuries he sustained in a car accident in 2001 when he was struck by a car while crossing the road. He spent a month in the Maroondah Hospital, Ringwood East, following the accident, and was left with back pain, numbness on the left side of his body and mental fatigue (Exhibit A). In his statement of facts and contentions, the applicant submitted:
Given the unimaginable level of trauma, displacement, personal loss and isolation this individual has experienced due to the car accident in Australia which rendered him unable to even experience one’s basic freedom of movement and the lack of support during and after this event, there is no doubt that he would have ongoing issues.
No medical evidence was provided in support of that assertion. The evidence, including his expressed intention to become a professional rugby player and his failure to pursue a claim for compensation when by his own account he was unable to work for months, casts doubt on how far those injuries are still a problem for him.
78. The applicant’s parents and siblings would suffer some emotional hardship if he were removed to New Zealand, but the evidence shows that they have had done little to maintain contact with him in recent years, even when they were readily able to do so. They would be able to preserve much the same level of contact if he were in New Zealand. They are not financially dependent on him.
79. The applicant has no marital, quasi-marital or business links with Australia. While he has taken some steps towards rehabilitation, his progress has been uneven and falls short of what would be required before one could conclude that he had reformed.
80. I conclude that the primary considerations of community protection and expectations outweigh the best interests of the children and the other considerations in this case. The decision under review should be affirmed.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 14 March 2006
Date of Decision 23 March 2006
Counsel for the Applicant Mr P Charman
Solicitor for the Applicant Ms A Hamdam, West Side Community Lawyers
Solicitor for the Respondent Ms K McNamara, Phillips Fox Solicitors
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