Fagaloea and Minister for Immigration and Citizenship

[2008] AATA 300

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0458

GENERAL ADMINISTRATIVE DIVISION        )

Re             Siufiui FAGALOEA

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date15 April 2008

PlaceSydney

DecisionThe decision under review is affirmed

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS - IMMIGRATION – visa ex – applicant’s visa cancelled for failure to pass character test – applicant sentenced to terms of imprisonment totalling 12 years – evidence of rehabilitation could not be described as strong – best interests of the child considered – other considerations – family would suffer some emotional hardship - applicant would suffer no particular hardship by being removed to New Zealand – primary considerations of community protection and expectations outweigh the best interests of the child and other considerations in this case – decision under review is affirmed.

…

RELEVANT ACT/S:

Migration Act 1958: ss 500(6B), 501, 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)

CITATIONS

Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Al-Kateb v Godwin (2004) 219 CLR 562

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

…

OTHER AUTHORITIES

Direction No 21

…

REASONS FOR DECISION

15 April 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Siufiui Fagaloea, also known as Sipaia Partsch, was born in New Zealand in 1977 and is a citizen of that country.  He entered Australia on 1 February 1993, and by operation of law was deemed to be the holder of a class TY, subclass 444 special category (TY-444) visa.  He was aged 15 at the time of his arrival and has not left Australia since.

2.      Within less than four months of his arrival, he began to accumulate a substantial criminal record, initially in children’s court.  His record includes convictions for the following offences:

§Indictable assault;

§Stealing from a person;

§Assault of a police officer (three counts);

§Robbery in company inflicting grievous bodily harm (two counts);

§Armed robbery with wounding (three counts);

§Breaking, entering and stealing;

§Assault occasioning actual bodily harm in company;

§Obstructing police on duty;

§Escape from lawful custody; and

§Failure to supply particulars.

3.      The applicant has also been charged with a number of offences as a juvenile, for which he received penalties including, but not limited to:

§Robbery in company whilst armed;

§Stealing (two counts);

§Malicious damage;

§Possession of implements to enter conveyance;

§Robbery in company (two counts);

§Attempt to obtain a benefit by deception; and

§Common assault.

4.      The applicant also has a history of offences in correctional facilities including:

§Fighting with other inmates;

§Failure of a urine test (two counts);

§Assault;

§Non-compliance with routine (two counts); and

§Failure to attend muster.

5.      The punishments in custody are spread fairly evenly over the years.  The latest one, in March 2005, was for fighting with other inmates.  There was also a conviction for assault in January 2001.

6. Cancellation of the applicant’s visa under s 501 of the Migration Act1958 (the Act), was previously considered by a delegate of the minister on 2 October 2005.  On 21 February 2007, however, the applicant was informed by letter that his case had been identified as being similar to Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 and that consequently he might not have been accorded procedural fairness in relation to the previous decision to cancel his visa. For that reason he was again being treated as the holder of a TY-444 visa.

7.      Another notice of intention to cancel was issued to the applicant on 17 April 2007 (T39-43).  At the time he was in Goulburn Correctional Complex, where he signed an acknowledgement of receipt of that notice on 23 May 2007 (T44).  The applicant requested and was granted several extensions of time to reply to the notice of intention, and ultimately received until 25 June 2007, on which date he sent a reply by facsimile.  Given the brevity of the response, he was again contacted in an attempt to obtain more information.  The applicant provided the telephone number of his brother, Mr Afa Partsch, who was contacted on 1 August 2007.  A letter was also sent to him that gave him until 17 August 2007 to respond.  No response to that letter was received, although several further attempts to contact Mr Afa Partsch were made.

8.      The minister’s delegate proceeded to cancel the applicant’s visa on 10 January 2008.

9. At the hearing, the applicant was unrepresented, while the respondent was represented by Mr Greg Johnson, solicitor of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person.

Issues

10.     The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,

(ii)whether the tribunal should exercise its discretion to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

11. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

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); or

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

12. “Substantial criminal record “ is defined in s 501(7)

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

…

13.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Applicant’s evidence

15.     At the directions hearing held 27 February 2008 I emphasised to the applicant the importance of serving on the respondent witness statements setting out the facts to which he and any supporting witnesses proposed to attest in oral evidence at the hearing, drawing to his attention the effect of ss 500(6H) and (6J) of the Act.  Nevertheless, the applicant did not serve a witness statement, although he did serve some letters of support from family members and from a Seventh-Day Adventist pastor (Exhibit A2).

16.     Consequently, the only evidence in chief he was able to give at the hearing was that contained in the G documents, especially his statement of 8 June 2007 (G pp50-53) and his criminal history.

17.     He did not dispute his criminal record and said he had no comments to make about it as there was no excuse for it.

18.     He said his family is very important to him and they are the main reason why he has sought to have the cancellation of his visa reviewed.  He has been in Australia since 1993 and all his family members live here, including his mother, his siblings, aunts, uncles and grandmother.  In New Zealand he only has one relative, a maternal aunt.  His aunt is living in Auckland, near where he used to live when he was in New Zealand.

19.     He also has a 10-year old son, Teejai Pansacala, born in Australia on 26 September 1996.  His mother’s name is Jesusa Pansacala.  He had been living with her until his arrest on 14 February 1996, which led to his incarceration for an 11-year sentence.  His son and his son’s mother are Australian citizens.

20.     As the child was born when the applicant was in prison, he has seen his son only three times in all, in 1996, when Jesusa brought him to visit the applicant at Goulburn.  He then ended his relationship with Jesusa, saying that he wanted her to get on with her own life and not wait for him.  He said she did not like that decision but has had no further contact with him and he has not seen his son since.

21.     He feels that cancellation of his visa would break up his family, who have already suffered by his incarceration.  His elderly grandmother would be particularly disappointed “if she lost her favourite grandson”.  He added that he feels that he is Australian and relates to the Australian culture.

22.     At the time he left New Zealand at the age of 15, he had reached Form 1 (Year 1) in high school.  He is able to read and write.  While at high school he held a part-time job in a paint shop.

23.     Contact with his family has mainly been by telephone.  When they were living in Sydney, there was weekly telephone contact, but they all moved to Queensland in 1996 or 1997.  Since then they might visit him up to three or four times every six months.

24.     His family is active in the Seventh-Day Adventist church and is very religious.  He was somewhat guarded about his own religious convictions but said he is a believer and that he attended church when he was young.

25.     The only job he has ever held in Australia was with Albion Steel at St Mary's, where he was employed for about two months, shaping metal to be used in construction work.  Before going to prison, he completed an 11-week course in bar management and hospitality at Mount Druitt TAFE College.  While in jail he undertook courses in employment options, anger management, drugs and alcohol, relapse prevention and literacy and numeracy.  He also had counselling on such matters as relapse triggers and family support.

26.     If released he would seek to obtain employment in the hospitality industry, in bar work or tourism.  He has discussed the possibilities with his family, but there is nothing certain at this stage as he feels it pointless to seek to make arrangements until the outcome of the current proceedings is known.  Asked about the offer by his brother Afa to obtain employment for him at Afa’s place of work, he said he did not know where Afa worked but had discussed the possibilities of work with him.

27.     He has never met Pastor Siofele, who wrote a letter of support for him (Exhibit A2) but is aware that the pastor knows his family.  He is not, however, aware of the rehabilitation program described in the letter and has not discussed it with anyone.

28.     He believes that his long period of incarceration has had a major effect on him, making him more aware of all the things he had missed out on.  He had no comment to make when asked about the risk that he might fall into recidivism.

29.     If released, his main objective would be to make contact with his son.  He is unaware of the whereabouts of his son or Jesusa, but he would endeavour to locate them through friends.  While in jail he tried to find his son through the prison welfare officer and the Salvation Army’s family tracing service in 2001 and 2002.  They reported back to him that they had conducted enquiries but could find no trace of Teejai or his mother.  He had asked them to contact the other friends referred to above, but their efforts proved unsuccessful.

30.     If he were to find his son, he would not seek to intervene if his son was having a good life, but he is not aware of his son’s present situation.  While he did not think he would be a positive role model, he said all he could do was to try to be one.  He realised that re-offending would have a bad effect on his son.

31.     He pointed out that he has never had a drug problem.  He would like to obtain employment and be a good citizen.  He believes he can prove himself in that regard.

32.     His earliest possible date for release from custody is 15 April 2008 and a parole hearing has been scheduled for that date.  If he is unsuccessful in obtaining parole, he would be released at the end of his sentence, on 17 March 2009.  A previous application for parole in 2006 had been rejected, the board considering that he would be unable to adapt to normal life.

33.     At the conclusion of the evidence the applicant made only brief submissions, repeating that his family was important to him and that he would like to try to locate his son.

Supporting witnesses

34.     The applicant tendered a number of letters of support (Exhibit A2).  One was from his younger brother Afa Partsch who wrote that he supports and helps his brother in any way possible.  He has a four-bedroom home where the applicant is welcome to stay for as long as he needs to.  Although they have been apart for many years, he misses the relationship the two of them shared and is willing to do whatever it takes to help his brother.  He would be able to obtain work for him at his place of employment for the last 18 months.  As he lives with his wife and children, the environment to which the applicant would be coming would be good for him.

35.     The applicant’s mother Mrs Kofe Partsch supported the application, pointing out that the applicant's whole family is here and there is no-one else who can support and look after him except his family in Brisbane.  Mrs Partsch said she needs him and he needs his mother also.  He has been in custody for 12 years and she believes that he has learned a lesson.  Mrs Partsch has a three-bedroom house but present occupied only by herself and the applicant's younger brother and sister, so there is plenty of room for him there.  She would do anything she could to obtain employment for him.

36.     A cousin, Miss Naomi Matamua wrote that she would help him to obtain employment and also to undertake rehabilitation classes.  It has been some time since she has seen him and she would love to see him again and spend more time with him.

37.     Pastor Siofele of the Samoan Independent Seventh-Day Adventist Church also wrote in support of the application.  The church’s letterhead does not state an address, but from the telephone number the church would appear to be located in south-east Queensland.

38.     Pastor Siofele has known the applicant’s mother and siblings for five years.  He states that the church provides various programs for rehabilitation, the main one, “Youth For Christ”, gives a young person an opportunity to reside with either the pastor or a leading elder of the church for a period of one year.  He would accompany that person in visiting families at their homes, in hospitals and elsewhere and would be involved in various church functions that concentrate on church growth and leadership training.

39.     He describes this program as having been a positive instrument that provides hope, strength and integrity to the lives of many young people.  In fact, it had helped to save his own life 24 years ago when he was living on “the mean streets of Los Angeles”.

Application of the Law and Findings of Fact

40. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

…

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

…

41.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).

42. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

43. In this case the applicant does not pass the character test because of his “substantial criminal record” within ss 501(6)(a) and (7). He was sentenced to terms of imprisonment totalling 12 years on 31 October 1997.

44. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

45.     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.

…

46.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (f), crimes of violence against persons.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

47.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

48.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(e) and (f) and that armed robbery and crimes of violence against persons are to be treated as very serious.  In this case, the applicant has been convicted of indictable assault, assaulting a police officer, robbery in company inflicting grievous bodily harm, armed robbery with wounding and assault occasioning bodily harm.

49.     The severity of the applicant’s offences was emphasised in the sentencing remarks of Johnston J of the Parramatta District Court on 31 October 1997 in which his Honour stated that on 22 January 1996, the applicant:

… embarked on what can properly be described as [a] brutal and vicious series of assaults upon defenceless citizens who were going about their business in what should have been a safe environment (G p100).

…

50.     His Honour concluded that:

…

It is difficult to imagine a more serious series of events spaced over such a short period of time.  Not only were the crimes brutal they were cowardly in that each victim whilst walking alone was set upon by two or more of the group and savagely attacked when they offered no resistance to their assailants.  Some, when rendered helpless and lying unconscious on the ground were slashed across the face with a knife wielded by the prisoner (G p111).

…

51.     One of the victims was a diabetic whose diabetes equipment contained in a bag he was carrying was smashed.  His memory was affected as a result of the attack and he was later treated for a speech defect (G pp103-104).  Some of the brutality the applicant displayed towards his victims was gratuitous and bordered on the sadistic.

52.     Other aggravating factors included the repeated commission of offences against law enforcement officers, his violent crimes against innocent citizens, and his escape from lawful custody, all tending to indicate a profound disregard for the law and the Australian community.

53.     At the hearing the applicant did not seek to excuse his conduct, but apart from that there is no evidence of mitigating circumstances.  Johnston J recorded no expressions of remorse, nor are there any in the extracts from the pre-sentence report from which his Honour quoted.  No more recent probation and parole service report was before the tribunal.  The applicant’s criminal history can only be viewed as very serious.

54.     The next issue for the tribunal to consider is the risk of recidivism.  A person’s previous general conduct and total criminal history are considered highly relevant to assessing the likelihood of further offending and the risk of recidivism (Direction No 21, para 2.10).  The applicant has a pattern of offending that began a matter of months after his arrival in Australia and continued until his incarceration.  During the three years the applicant spent in Australia before his imprisonment, he was convicted of 17 offences and received penalties from the children’s courts for a further 12.

55.     The applicant thus appears to have been undeterred from criminal activity by the sanctions imposed in the children’s courts.  Further, while serving his current term of imprisonment he has committed seven offences in custody, some of which have involved violence against other inmates.

56.     The tribunal in the past has considered such factors to increase the likelihood of recidivism; see Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126 at paras 31 to 51 per Deputy President Jarvis.

57.     As was mentioned above, the only probation and parole service report available is the pre-sentence report tendered at his sentencing hearing in October 1997.  It reports that the applicant blamed his criminal conduct on an abusive step-father, but his mother and brother rejected that claim and Johnston J appears to have preferred their version of events (G pp107-109):

… it is appropriate I refer to some aspects of that report.

Mr Fagaloea is of Samoan background and is the eldest of six children, whose parents separated when he was young.  The circumstances of Mr Fagaloea’s upbringing are open to question.  The offender stated that he ran away from home at the age of eight to escape repeated beatings from his step-father, who heavily abused alcohol.  He subsequently affiliated himself with a “street gang” and developed a significant alcohol and cannabis problem.  Mr Fagaloea claimed that it was during this period that he learned to offend in order to survive.

Mr Fagaloea reported that he continued to live transiently until the age of fifteen, when he made contact with his biological father, who organised for him to be reunited with his mother and step-father who had migrated to Australia in 1991.  Mr Fagaloea stated that upon coming to Australia he immediately resumed his heavy drinking and again began associating with “street gangs”.

This version of events is disputed by Mr Fagaloea’s mother and brother, who reported that Mr Fagaloea’s step-father was neither violent or abused alcohol.  They reported that Mr Fagaloea only ran away from home on one occasion, for a period of two days, and had no gang involvement of which they were aware.  The offender's mother also stated that Mr Fagaloea was only separated from the family for a brief period during their migration to Australia.  She and her husband came to Australia to secure accommodation two weeks before sending for Mr Fagaloea, who remained with his grandparents.  Both the offender’s mother and brother give an account that describes the family environment as supportive and “close”.  Mr Fagaloea’s family currently reside in Queensland, remain supportive and claim they still have regular telephone contact with him, although they do appear unaware of the charges pending.

Mr Fagaloea claims he started abusing alcohol and cannabis at age eight.  His use of alcohol quickly escalated to a point where he was consuming alcohol at a harmful level on a daily basis.  He stated that he drinks to “blot out” memories from his childhood, but is aware that he becomes aggressive when intoxicated.  Mr Fagaloea claimed that all his violent offences were committed when disinhibited by alcohol.

…

58.     His Honour noted that a clinical psychologist’s report on the applicant was also based on the applicant’s apparently false account and his Honour placed little reliance on it.  However he gave weight to some of the report’s conclusions (G pp110-111):

…  Mr Taylor reports under the heading Opinion:

If Mr Fagaloea is not to reoffend in the future then clearly a number of steps need to be taken.  Firstly he needs to develop more effective emotional and personality resources so that he can begin to lead a more stable life.  He needs to gain considerable insight concerning his past behaviour patterns and his present attitudes and perceptions.  He will need to be motivated for significant changes to occur and for such motivation he will obviously need to perceive a need to change.  It also appears that substance abuse has been a major factor in his previous criminal behaviour.  He clearly needs a rehabilitation programme to assist him with regard to this.  Basically what seems to be required is a programme to be designed whereby Mr Fagaloea can be encouraged to restructure his life so that when he is released from prison he will be in a position to lead a much more stable and productive life.  He will need a good deal of supervision once he is released and this would necessarily involve ongoing counselling.  He is to some extent intellectually limited in that he has borderline intellectual functioning and therefore his capacity to learn employment skills is also very limited.  It is likely that he will only ever be suitable for training in unskilled or semi-skilled positions.

…

59.     At the hearing in examination-in-chief the applicant, when asked to comment on the possibility that he might re-offend, declined to do so.  He gave no indication of any appreciation of the harm that his wrongdoing caused to society and to his victims in particular.  While at least to some extent that might be attributed to his laconic disposition, the evidence offers little ground, beyond his expressions of intention, for concluding that he is rehabilitated or that he presents no significant risk of re-offending. 

60.     On the contrary, his criminal history, including his record while in prison, rather suggests the contrary.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51].

61.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance, but the concept is sometimes expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

62.     Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.  Although not a substantial factor in itself, it is relevant to any consideration of community protection.

63.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

64.     In my view, cancelling the visa in this case would help to send a clear message that non-citizens who commit serious crimes face the possibility, in the absence of evidence of rehabilitation or other relevant factors, that they will not be permitted to remain in Australia.

Expectations of the Australian Community

65.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

66.     It may be noted by way of introduction that in Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).

67.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).

68.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

69.     In my view, the community would expect that the visa of a person with such a serious and sustained criminal record that suggests a risk of re-offending and who shows little evidence of rehabilitation should be cancelled.

The Best Interests of the Child

70.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

71.     The respondent did not contradict the applicant’s evidence that he has a 10-year-old son, Teejai Pansacala, who was born as a result of the applicant’s relationship with Jesusa Pansacala, and who is an Australian citizen, although apart from the applicant’s testimony, there is no evidence of the child’s existence.  Nor is there any evidence about his whereabouts or that of his mother, or of his current situation generally.

72.     The applicant’s relationship with Teejai to date has been minimal.  He saw him three times in the course of jail visits before the child was one year old but has neither seen nor had any contact with Teejai since.  If released into the community his primary goal would be to locate his son.  He said that if, having done so, he found that Teejai was having a good life, he would not seek to intervene.  Whether he would in fact be successful in finding Teejai is questionable, as his efforts to do so through the prison welfare officer and the Salvation Army family tracing service produced no trace of him.  The applicant believes he might be able to find Jesusa and Teejai through other friends, but he asked the Salvation Army to contact them for that purpose and apparently they did so, but without success.

73.     He does not think he would be a particularly positive role model for his son but said that all he could do would be to try to be.  He agreed that if he were to re-offend that would have a bad effect on Teejai.

74.     There is no reason to doubt the sincerity of the applicant’s aspirations in this regard but the relationship between him and his son at present is virtually non-existent and the hypothetical prospect for developing a stronger relationship in the future as contemplated by paragraph 2.16(b) of Direction No 21 is speculative and far from robust.  In relation to paragraph 2.16(e) of the Direction, there is no evidence that separation from the applicant would have any effect on the child.  Further, at present there is no prospect that Teejai and his mother would move to New Zealand to be with the applicant.  On the evidence there is little ground for concluding that Teejai’s best interests require that the applicant remain in Australia.

75.     As the respondent pointed out, the real risk of recidivism also raises the possibility that the applicant might be incarcerated in the future, thereby reducing the possibility of his having a relationship with the child.

76.     I therefore find that the best interests of the child in this case do not weigh significantly against visa cancellation.

Other considerations

77.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

78.     His two months with Albion Steel were the only employment the applicant has had in Australia.  He has thus no business ties with this country, and there is no evidence of any community ties, no doubt mainly because the applicant has been incarcerated for most of his time in Australia.

79.     He has an aunt living in Auckland, but the rest of his family are in Queensland.  They are in reasonably regular contact with him by telephone, with what frequency is not quite clear, but it appears to be something less than monthly.  In their letters of support (Exhibit A2), three of his family members have expressed their preference for his remaining in Australia and say they would like to develop a closer relationship.  They would presumably suffer some emotional hardship if he were removed to New Zealand, but they are not dependent on him and would experience no particular difficulty.  They would be able to visit him in New Zealand if they wished to.

80.     The applicant has expressed the intention of becoming a responsible citizen and says he would seek employment in the hospitality industry, a field in which he has some qualifications.  His brother Afa says he would arrange for the applicant to work at the business where Afa is employed, but there is no evidence as to where Afa works or what his employer’s attitude to such an arrangement would be.  The applicant has little work experience, but has some useful qualifications and has undertaken appropriate courses while in prison.  There is no evidence of a drug problem, and the applicant says he has never had one.  Alcohol abuse has, however, been a significant factor in his past offending.  He took an alcohol abuse prevention course while in custody, but any reform in that regard (which he does not claim) has yet to be put to the test in the community.

81.     Pastor Siofele would like to help him, but the applicant has never met the pastor or discussed possible arrangements with him.  The applicant is not a regular churchgoer, and while that fact cannot be regarded as weighing against him, it does not strengthen the likelihood that he would take advantage of the constructive opportunities offered by the pastor’s church.

82.     The evidence of rehabilitation can thus not be described as strong.  On the other hand, his record of violations while in jail, including some offences of violence against other prisoners, tends to point in the other direction, as does that fact that he was refused parole in 2005.

83.     The applicant would suffer no particular hardship by being removed to New Zealand.  He has spent half his life there, up to the age of 15, and had all his schooling there.  His aunt lives in Auckland, near where the applicant resided when he was young.  There is no reason to believe that he would experience any significant difficulty in readjusting to New Zealand life, which is not greatly different from that in Australia.

84.     I find that the primary considerations of community protection and expectations in this case outweigh the best interests of the child and the other considerations.

85.     The decision under review is affirmed.

I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   …………………[sgd]……………………………

R. Wallace, Associate

Date/s of Hearing:  1 April 2008
Date of Decision:  15 April 2008
Solicitor for the Applicant:                  Unrepresented
Solicitor for the Respondent:             Mr G Johnson, DLA Phillips Fox