Faifuaina and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 511

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 511

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/193

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FERETI FAIFUAINA

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date2 June 2005

PlaceBrisbane

Decision The Tribunal affirms the decision to refuse to grant a visa

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

IMMIGRATION – refusal to grant a visa – substantial criminal record – does not pass the character test – discretion not exercised in applicant’s favour – decision affirmed

Migration Act 1958: s499, 501 (1), (6), (7)

AMENDED REASONS FOR DECISION

21 November 2005 Deputy President Don Muller        

1.      Fareti Faifuaina is a citizen of Samoa who has been living in Australia since 19 May 2002.

2.      Mr. Faifuaina first visited Australia for a vacation, on a visitor’s visa, on 15 January 2001.  He remained in Australia until 31 March 2001.

3.      He was granted a Provisional Spouse Visa on 27 March 2002.

4.      He arrived in Australia on 19 May 2002 with the intention of living permanently in Australia with his wife who is an Australian citizen.

5.      On 19 August 2002, Mr. Faifuaina committed at least two serious criminal offences.  He attempted to rape a teenage girl and he raped a second teenage girl.  He is currently in prison.

6.      On 17 March 2005 a delegate of the Minister decided to refuse to grant a visa to Mr. Faifuaina.  This decision automatically cancelled the Provisional Spouse Visa.

7.      Mr. Faifuaina seeks a review of the decision to reject his application for a visa.

8.      The material placed before the Tribunal consisted of the G-documents, numerous letters and photos relating to Mr. Faifuaina’s marriage and to his family life, correctional service records and other character references and certificates of courses completed by Mr. Faifuaina.  The Tribunal also had the Queensland Court Brief relating to the criminal offences described above plus the District Court transcript.

9.      The Tribunal heard oral evidence from Mr. Faifuaina, his wife, his father, mother, two sisters and a friend.

10.     The following facts are not in dispute and I find as follows:

i.Fareti Faifuaina was born in Samoa on 17 March 1978.

ii.He was raised in a Christian family and he attended religious schools.

iii.He has five sisters, all younger than he is.

iv.His parents live in Samoa.

v.Four of his sisters live in Samoa.  One sister lives in New Zealand.

vi.He attended St. Joseph’s School in Samoa from grades 1 to 8.  He went to a college for grades 9 and 10, then to a “general college” for grades 11 and 12.

vii.He had a happy childhood.  He was respectful towards his parents and his sisters.  He actively participated in religious youth groups.  He was good at sport.  His parents regard him as having been a perfect son.  He grew up in a strict Christian environment.

viii.He does not smoke or drink alcohol.

ix.On 11 November 2000 he married his wife, in Apia, Samoa.

x.His wife was born in Auckland, New Zealand.

xi.His wife first entered Australia in December 1999.  She subsequently became an Australian citizen in 2004.

xii.His wife lives and works in Brisbane.

xiii.Mr. Faifuaina came to Australia for a holiday in 2001, from 15 January 2001 to 31 March 2001.

xiv.Mr. Faifuaina was granted a Provisional Spouse Visa on 27 March 2002.  He arrived in Australia on 19 May 2002 and commenced to live with his wife in Brisbane.

xv.Mr. Faifuaina obtained a job on 15 July 2002.  He worked at night as a “packager”.

xvi.His wife’s parents live in New Zealand.  His wife also has a sister and a brother who live in New Zealand.  She has a sister, a brother and various cousins and their families who have migrated to Australia and live here permanently.  She has some “uncles and aunts” in Samoa.

xvii.Fereti Faifuaina and his wife have no children.

11.     The Queensland District Court transcript reveals that on 29 March 2004, Mr. Faifuaina pleaded guilty in the Queensland District Court to the following offences:

i.Deprivation of liberty – unlawfully detain/confine (on 19.8.02).

ii.Attempted Rape (on 19.8.02)

iii.Deprivation of liberty – unlawfully detain/confine (on 19.8.02)

iv.Rape (on 19.8.02).

He was sentenced to imprisonment on the four counts to one year, four years, 18 months and 7 years, respectively, to be served concurrently, with his time in prison, from 20 August 2002, to be time already served under the sentences.

12.     The Queensland Police Court Brief indicates that the above offences were committed on two girls, one 16 years of age and one 14 years of age.  The girls were not known to Mr. Faifuaina and they were not known to each other.  The first two offences occurred at about 10.30am on 19 August 2002, on the 16 year old girl.  The third and fourth offences occurred at about midday on the 19 August 2002, on the fourteen year old girl.  The girls made complaints to the police independently of each other.  The 16 year old made a complaint at about 2pm on the day in question through the Deputy Principal at her high school.  The fourteen year old made a complaint at about 5pm on the same day through her mother.

13.     Both complainant girls gave extensive statements to the police.  It is not necessary to here repeat everything contained in the two statements but I believe that I should quote enough from the statements to indicate the seriousness of the crimes.

Statement 1 contains the following:

“The complainant stated that at about 10.30am she met a male person outside Centrelink.  After a short conversation she accompanied the male person, the defendant in this matter to KFC and then walked with him to his home unit.  The complainant entered the unit and placed one of the bags of KFC on a chair inside the unit.  The complainant then attempted to leave the unit when the defendant grabbed her around the waste with one of his hands and pulled her back inside the unit and shut the front door.  The defendant then pushed the complainant onto a mattress which was situated on the loungeroom floor.  The defendant then lay on top of the complainant.  The complainant attempted to get up and kicked the defendant.  The defendant placed his hands on the complainants shoulders and stopped her from moving.  The defendant then offered the complainant money.  The complainant asked the defendant to let her go.

The complainant then screamed, the defendant placed his hands over her mouth and told her to shutup.  The complainant then began to cry.  The defendant then attempted to pull the complainants shirt up.  The complainant kept pulling it down.  The defendant kept trying to kiss the complainant but she kept pulling away.  The defendant then got off the complainant and walked towards the hallway inside the dwelling.  The complainant grabbed her bag, opened the front door and ran away from the dwelling.”

Statement 2 contains the following:

“The complainant child stated that at about 12.00pm on the 19^th day of August 2002 a male person, the defendant in this matter has approached her outside the fence line of the Gardens complex.  The defendant has called the complainant over to him and asked her why she was walking in the rain.  The defendant has then asked the complainant if she was hungry and if she needed a towel.  The defendant has then left and returned with a towel a short time later and re approached the complainant and has begun to rub her up and down with the towel around her breasts.  The defendant has then tried to kiss the complainant on the mouth.  The complainant kept moving her head.  The defendant has then grabbed the complainant by the arm and pulled her into his unit.  The complainant has attempted to struggle.  The defendant has pulled the complainant into his unit and has locked the door behind them.  The complainant has started to scream.  The defendant kept saying to her ‘Don’t worry.’

The defendant has then picked the complainant up and placed her onto a mattress which was situated on the floor of the loungeroom/dining room area.  The defendant has continued to hold the complainant down, pulled her bra down and started sucking on her nipples extremely hard.  The complainant kept pushing the defendants head back with her hands.  The defendant kept telling the complainant to relax and enjoy it. The defendant also stated to her that he was going to pay her $50.00 afterwards.  The complainant kept kicking and dragging her body backwards, but the defendant kept moving with her until they hit the internal wall.

The defendant kept trying to put his penis into the complainant.  The complainant kept placing her hands over herself and screaming.  The complainant kept telling the defendant to fuck off.  The complainant then dragged herself underneath the dining room table and tried to push chairs over the defendant.  The defendant has then started to masturbate whilst he was still on top of the complainant whilst he was still holding her.  The defendant has then placed his penis inside the complainants vagina and continued thrusting until he ejaculated.  When the defendant had finished, he got off the complainant.  The complainant has then run for the door.  The defendant has held the complainant and stopped her from leaving. The defendant has then gotten $10.00 out of his wallet and attempted to pay the complainant.  The complainant has stated to the defendant that she did not want his dirty money and that she just wanted to go home.  The defendant kept following the complainant asked her when he would see her again and when could he take her to the movies and when was she coming back to see him at his house.”

14.     Mr. Faifuaina gave evidence to the Tribunal that he is innocent of the charges for which he was convicted.  He said that he was not provided with an interpreter at the time he was charged and that he did not understand what was going on.  He claims to have been told to plead guilty without fully comprehending to what he was pleading guilty.

15.     The Police Brief indicates that on 20 August 2002 at the Petrie Police Station Mr. Faifuana requested an interpreter and that an interpreter arrived at the Police Station at 2.25pm on that day.  The Police Brief also indicates that Mr. Faifuaina requested, through the interpreter, that he wanted a lawyer.  A lawyer was arranged for Mr. Faifuaina by his wife.  Mr. Faifuaina spoke to the lawyer over the telephone.  The police then conducted what amounted to a “refusal interview” with Mr. Faifuaina through the interpreter.  Mr. Faifuaina also consented, though the interpreter, to give a sample of his DNA.

16.     I do not accept that Mr. Faifuana did not know what allegations the complainant girls had made against him, before he pleaded guilty.  I do not accept that he was in any way confused.  He had the services of an interpreter, a lawyer and the assistance of his wife.  His wife has stood by him.  She organised legal assistance for him.  The time between the day he was arrested, 20 August 2002, and the date of his trial, and ultimate plea of guilty, 29 March 2004, was 18 months.  I do not accept that Mr. Faifuaina spent 18 months in prison awaiting trial without discovering what allegations were being made against him.  Surely his wife or his lawyer told him during that time.

17.     I note that Mr. Faifuana has completed a number of courses during his time in prison.  However, there is a prison note to the effect that he has avoided the course relating to the sexual offenders program.

18.     In my view, his now denial of his guilt and his failure to engage in the sexual offenders program in prison indicates that he is nowhere near the stage of rehabilitation.

19.     The legislation relevant to this review is contained in subsections 501(1), (6) and (7) of the Act.  They provide:

“s.501

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test

….

Character test

(6)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;  or

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

the person is not of good character;  or

(d)in the event the person were allowed to enter or to remain in Australia, there is significant risk that the person would:

(i)engage in criminal conduct in Australia;

Otherwise, the person passes the character test.

Substantial criminal record

(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.”

20.     There is no doubt that Mr. Faifuaina has been sentenced to a term of imprisonment of 12 months or more.  He therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act.  He is therefore deemed by subsection 501(6) to not pass the character test.  Consequently, the delegate of the Minister was entitled to refuse Mr. Faifuaina’s application for a visa under subsection 501(1) of the Act.

21.     However, notwithstanding the fact that the decision to refuse Mr. Faifuaina’s application for visa was justified, section 501 allows for the decision-maker to exercise a discretion in each individual case.  The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision-makers (including the Tribunal) are to take into account in exercising the discretion.

22.     The Minister’s Direction 21 contains a large number of matters which a decision-maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled.  A number of the matters do not apply to Mr. Faifuana.  I regard the following matters as relevant to this review.

Protection of the Australian Community

23.     The crimes of rape and attempted rape are particularly serious.  Crimes that involve sexual violence are so serious that anyone who participates in them almost automatically forfeits the right to expect compassion.  The Australian community is entitled to be protected against persons who perpetrate such crimes.

24.     I accept the claim by Mr. Faifuaina that he has completed some worthwhile courses whilst in prison.  I hope they do him some good.  However, he is yet to demonstrate that he will not continue on the same criminal path as a sexual predator.  He denies his guilt and refuses to acknowledge that he has a problem.

25.     I find that in Mr. Faifuaina’s case there is a significant risk of recidivism.

26.     There is also the element of deterrence to be considered.  However, I regard deterrence to others as a by-product of the decision to refuse the visa rather than a reason to refuse in Mr. Faifuaina’s case.  I would have thought that the prospect of a lengthy term in prison would have sufficient deterrent effect.

Expectations of the Australian community

27.     I believe that it would be the expectation of the members of the Australian community that Mr. Faifuaina not be permitted to remain in Australia.  He was in Australia for only a few months before he committed serious offences.

28.     I accept that Mr. Faifuaina’s family in Samoa are devastated by the conviction of their son and brother of the offences of rape and attempted rape.  I accept that his family provided well for him in his childhood and that they provided an environment for him in which he appreciated right from wrong.  They attempted to give him good values.  He has badly let them down and they will have to accept that fact and come to grips with it.  There is no point in continuing to maintain that he is still the boy that he once was.  If he returns to Samoa they may be able to help with his rehabilitation.

29.     I also feel a great deal of sympathy for Mr. Faifuaina’s wife.  She seems to be a very decent person.

30.     However, Mr. Faifuaina really has no family ties to Australia, other than his wife, and in my view the serious flaw in his character, and the potential risk he poses to the Australian community far outweigh other considerations.

31.     I find that the discretion allowed for under s.501 should not be exercised in Mr. Faifuaina’s favour.

32.     The decision to refuse Mr. Faifuaina’s application for a Visa is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  26 May 2005
Date of Amended Decision      21 November 2005
Applicant  Mrs. Faifuania 
Solicitor for the Applicant          Clayton Utz