Faiumu and Minister for Immigration and Border Protection (Migration)

[2018] AATA 3431

Faiumu and Minister for Immigration and Border Protection (Migration) [2018] AATA 3431 (11 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3783

Re:Mathew Faiumu

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:11 September 2018

Place:Sydney

The reviewable decision made on 2 June 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of Mr Faiumu’s Class TY Subclass 444 Special Category (Temporary) visa, is affirmed by the Tribunal.

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Senior Member M J McGrowdie

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – revocation – failure to pass the character test – substantial criminal record – Ministerial Direction no 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – expectations of Australian community – impact on victims of Applicant’s criminal conduct – impact on Applicant’s family – strength, nature and duration of ties – extent of impediments if removed from Australia – decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Senior Member M J McGrowdie

11 September 2018

INTRODUCTION

1. Mr Mathew Faiumu (“the Applicant”), aged 31 years, applied to the Tribunal for review of a decision dated 2 June 2017, made by a Delegate of the Respondent, not to revoke a mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

2. The Applicant currently resides with his wife in New Zealand having departed Australia on 22 July 2016. He first arrived in Australia at the age of 13 and lived consistently in Australia from the age of 20. Although born in New Zealand, he was raised by his grandparents in Samoa.

3. The Applicant and his wife have a son who was born in New Zealand in April 2017. The Applicant is currently employed in New Zealand as a welder. The Applicant’s wife has also been employed.

4. The Applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) due to his criminal record in Australia and consequently, not satisfying “the character test” as defined in section 501 of the Act.

5. The mandatory cancellation of a visa can be revoked even if a person does not satisfy the character test if, in the exercise of discretion, there is “another reason” why the original decision should be revoked. In exercising the discretion, decision makers are to have regard to Ministerial Direction No. 65 made pursuant to section 499 of the Act. In the decision dated 2 June 2017, the Delegate determined that there was not another reason why the cancellation should be revoked.

   ISSUE

6. The Applicant does not satisfy the character test because of his criminal record. The issue for the Tribunal to determine is whether the discretion should be exercised in the Applicant’s favour to revoke the mandatory cancellation of his visa.

   CRIMINAL HISTORY

7. An outline of the Applicant’s criminal history is as follows:-

   (a)On 11 March 2009 in Brisbane, the Applicant was found guilty of the offence of “possess utensils or pipes etc for use” with the date of the offence being 22 February 2009. In short, the Applicant, then aged 21, was found in possession of “a bong” used for smoking cannabis. No conviction was entered and the Applicant was placed on a good behaviour bond for four months.

   (b)On 12 April 2011, before Deputy Chief Magistrate Hine, the Applicant was convicted of an offence occurring on 5 December 2010 at a Brisbane Hotel when the Applicant hit another person at the hotel over the head with a bottle. The person hit was rendered unconscious and was hospitalised for four days with bleeding to the brain and ringing in the ears. The person lost four weeks off work and was unable to drive for a further four weeks. He was unable to play football. The person also suffered emotionally. The Applicant was convicted to 12 months imprisonment with parole after three months. The Applicant was contrite with regard to his offending and underwent some rehabilitation.

   (c)On 25 May 2011 the Applicant was sent a “Notice of Intention to consider cancellation of your Visa under subsection 501(2) of the Migration Act 1958”. The Applicant made representations on 1 June 2011 including making a statement that: “What I did is a one off incident and out of character, and I promise myself it won’t happen again”.

   (d)As a result of his representations, a decision was made on 27 June 2011 not to cancel the Applicant’s visa and to give him a warning.

   (e)Whilst still on parole for the 2010 assault, on 22 November 2011 the Applicant was convicted of three driving offences occurring on 16 October 2011, namely a mid-range alcohol reading, driving an unregistered motor vehicle and not complying with the conditions of a learner’s licence. His parole order was suspended and the Applicant taken into custody for a period. On the driving charges, he was convicted on the first charge and disqualified from driving for three months. He had a conviction recorded on the further two charges but was not punished.

   (f)On 18 January 2013 the Applicant was convicted of an offence committed on 9 December 2012 of “commit public nuisance” for which he was fined $250.00.  On the date of the offence the Applicant entered a restaurant in an intoxicated state seeking service. He was refused because he did not order food. The Applicant threw a plastic bread basket at a staff member and seized a pepper grinder and refused to return it unless he was served.

   (g)On 24 September 2015 the Applicant was convicted in the District Court of Queensland in Brisbane before Noud J for offences committed at a Brisbane hotel on 18 January 2014 at a hotel in Brisbane, namely, “Grievous bodily harm and assault occasioning bodily harm”. There were two victims involved. The primary victim suffered a broken jaw which required repair, involving three metal plates and twelve screws implanted in his jaw. There was also damage to his teeth. These injuries resulted from the primary victim being struck by the Applicant, who had been affected by alcohol at the time. For this offence, the Applicant was sentenced to imprisonment for three years and six months with the sentence to be suspended after ten months. For the offence occasioning actual bodily harm to the other victim who was struck in the face by the Applicant, the Applicant was sentenced to ten months imprisonment to be served concurrently. In his sentencing remarks His Honour Noud J noted the Applicant’s remorse, engagement in rehabilitation, otherwise good character, ties to his fiancé, his charitable and generous nature and references provided in support of the Applicant. It was on this basis, it would appear, that the Applicant’s sentence for the assault of the primary victim was to be suspended after ten months. Overall, the period of the sentence, including the period of suspension of sentence, would have extended into 2017. Accordingly, for a period since the Applicant has most recently been in New Zealand, he was on parole.

   (h)On 14 December 2015 at Beenleigh Magistrates Court the Applicant was convicted and fined $500.00 for the offence of “common assault” occurring on 15 April 2015. The Applicant had been playing touch football one evening. Following the game, the Applicant was said to have uttered verbal obscenities at the Referee, after which he then struck or pushed the Referee. The records in relation to this event are not complete, despite attempts by the Respondent to obtain all records. There is a copy of a signed statement from the Referee that he had been punched in the face twice by the Applicant and there is a statement of a Medical Officer who examined the Referee on the day of the occurrence which refers to a reported series of punches to the face. There was no obvious sign of injury.

   (i)At the hearing of the current matter, both the Applicant and his wife said that at the hearing of the charge before the Magistrate, the Applicant pleaded guilty when the Referee amended his statement to refer to pushing rather than punching by the Applicant. In any event, it was an angry assault by the Applicant and was committed at a time when he was on parole for the assault occurring in January 2014 for which he was sentenced in September 2015. There was no alcohol involved in the football event. Any amended statement from the Referee is not available to the Tribunal, nor any Facts Sheet or Transcript of the proceedings before the Magistrate. The original statement of the Referee which was before the Tribunal was quite detailed and graphic, and, did refer to the Referee being punched twice by the Applicant and the Applicant having to be pulled away by others attending the game. The penalty imposed by the Court on that occasion does, however, suggest the possibility of some lessening of the allegations against the Applicant.

   SUPPORT FOR THE APPLICANT

8. There is no doubt that the Applicant is in a loving and stable relationship with his wife, an Australian Citizen, and that the Applicant is a responsible and proud father. The Applicant has known his wife since about 2010 and by May 2013, they had become a couple, moving in together in a Sydney suburb in July 2013. They were married in Samoa in 2016. At that time, the Applicant’s parents and six siblings were living in Samoa. The Applicant was providing some financial support to his family.

9. The Applicant and his wife have been regular church goers and the Applicant has been a keen supporter of sporting clubs and has provided encouragement and assistance to younger persons. He has been in regular and responsible employment. A number of persons have provided positive references which speak of the Applicant’s overall good character.

10. Since his sentencing in the District Court in September 2015, the Applicant served his sentence without incident. After his release and subsequent relocation to New Zealand the Applicant has engaged in rehabilitation and voluntarily undertook an Anger Management Programme. It would seem that the Applicant’s intentions have been good and positive.

11. The Applicant’s parents-in-law both gave evidence and strongly supported him, providing their endorsement of the Applicant as their daughter’s spouse and as the father of their grandchild. The Applicant’s father-in-law was born in New Zealand and he and his wife lived for a period in New Zealand. The Applicant’s father-in-law has been a successful business man. The Applicant’s mother-in-law has been in ill health with chronic health problems. They live in Queensland. The mother-in-law is missing the help and assistance of her daughter. She is also concerned that her health might inhibit her ability to travel to New Zealand and would greatly support an outcome which would allow the Applicant to travel to, or live in Australia, with his family.

12. The Applicant’s wife believes that her son would benefit from the opportunity to be raised in Australia. The Applicant has some relatives in Australia.

    MINISTERIAL DIRECTION NO. 65

13. In considering the Applicant’s application to have the mandatory cancellation of his visa set aside, I must have regard to Ministerial Direction No. 65 and in particular to Part C of that Direction. The Delegate of the Minister had concluded that as a result of the Applicant’s past criminal conduct, he represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child. The Delegate was not satisfied that the cancellation should be revoked.

14. General guidance to decision makers is provided in the Preamble of Direction No. 65. Clause 6.2(1) provides a statement that:-

    “The Government is committed to protecting the Australian Community from harm as a result of criminal activity …. by non-citizens.”

15. There are a number of Principles that apply to all parts of the Direction. These include what is set out in Clause 6.3(1), namely, that:-

    “Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia….”

16. It is further stated in Clause 6.3(3) that:-

    “A non-citizen who has committed a serious crime …. should generally expect to … forfeit the privilege of staying in, Australia.”

17. A decision to set aside a mandatory cancellation will involve a balancing of the relevant matters to be considered under Part C.

18. There are three Primary Considerations under Part C, as well as other considerations.

19. The Primary Considerations are:-

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)The expectations of the Australian community.

    PRIMARY CONSIDERATIONS

    (a) Protection of the Australian Community from criminal or other serious conduct

20. Australia is committed to protecting the Australian community from harm as a result of criminal activity (Clause 13.1(1)). It is necessary to give consideration to the nature and seriousness of a non-citizen’s conduct and to the risk to the Australian community should the non-citizen commit further offences (Clause 13.1(2)).

21. In assessing the nature and seriousness of the conduct, one is to look at, amongst other things, the sentence imposed by the Court (Clause 13.1.1(1)(c)) and the frequency of offending (Clause 13.1.1(1)(d)).

22. Here, the sentences imposed were for substantial gaol terms on two occasions and involved significant acts of violence. The Applicant’s conduct became more serious in terms of offending. The seriousness is not lessened by categorising the offences simply as “pub-brawls fuelled by alcohol”. On both occasions the victims suffered significant injuries. Despite being in a loving and stable relationship with his wife, and living with her, the Applicant committed the offence of grievous bodily harm on 18 January 2014 for which he went to gaol. In respect of the further incident involving the Referee, there was a physical assault of some nature involved. This assault did not involve alcohol. The Applicant has said he has greatly curbed his drinking, does not go out with “the boys” or get involved with a bad crowd. The Applicant now also has the responsibility of being a father.

23. There is no doubt in my mind that apart from his offending, the Applicant has been a good and kind person. However, when one looks at his history of offending there is great concern. Not only are there the offences involving violence, there are also, but to a lesser degree, the traffic offences. The Applicant’s offending does suggest a disregard for the expectation that non-citizens will be law abiding in return for the privilege of being able to remain in Australia.

24. Generally speaking, even “trivial” offences may be seen as more significant when they are viewed cumulatively or as part of a pattern of conduct. Of significance in the present application is that the traffic offences occurred whilst the Applicant was on probation from the first major assault and that the incident with the Referee occurred whilst the Applicant was on parole from the second major assault. The parole period of the second major assault only ended last year. Further, the fact that the two major assaults attracted significant penalties is a consideration in viewing the seriousness of those offences.

25. The Applicant was contrite about the first major assault and avoided having his visa cancelled on that occasion. On this occasion, he was given a warning with regard to his visa. Notwithstanding those factors, the Applicant was involved in another major assault whilst still on parole. All of this appears to indicate that despite the Applicant’s “best intentions”, he managed to get into trouble again. This is relevant in considering the risk to the Australian community.

26. In considering whether a person represents an unacceptable risk, regard is to be had to the principles that the tolerance of the Australian community for any risk of further harm decreases as the seriousness of potential harm increases (Clause 13.1.2(1)). Regard is also to be had to (a) the nature of the harm and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct (Clause 13.1.2(2)).

27. The Australian community can be said to be tolerant to some risk. However, the Applicant continued to re-offend after the first major assault despite stating that he had learnt from his mistakes. The Applicant again has shown remorse and has taken positive steps towards rehabilitation. It is my view that it is just too early to predict that, despite his good intentions, the Applicant will not re-offend. Although the risk may not be great, such risk is still significant particularly having regard to serious injuries inflicted by the Applicant in the relevantly recent past.

28. In summary, I regard this first primary consideration to weigh strongly against the Applicant.

29. I now come to the next primary consideration.

    (b) The best interests of minor children in Australia

30. The Applicant’s son lives with his parents in New Zealand. Whilst there are relatives in Australia, in particular the Applicant’s father-in-law and mother-in-law, the Applicant and his son will not be separated if the Applicant’s application is not successful. Certainly, the Applicant’s son would not have the same access to his grandparents were he not to grow up in Australia. However, the Applicant’s wife would be free, as an Australian citizen, to bring their son to Australia to visit. Further, the Applicant’s wife, who may not be able to offer support to her ill mother in Australia on a regular basis, could take their son to visit his grandparents and other relatives in Australia. It is accepted that the mother-in-law may not be able to travel to New Zealand due to her ill health. The Applicant too has some relatives in Australia and so there could be an impact on their son as well as the Applicant if the Applicant is not able to enter Australia. The Applicant has family in Samoa where the Applicant and his wife were married, and where the Applicant regularly visits. The rights of the Applicant, his wife and his son to visit Samoa should remain available.

31. It is simply a question, which has no definitive answer, as to whether the Applicant’s son would have “a better life” in Australia rather than in New Zealand. I accept that the Applicant’s wife is of the view that it would be in their son’s interests to have the opportunity of being raised in Australia or to have the opportunity to visit with both his parents.

32. On balance, I consider that this consideration weighs in favour of revocation of the cancellation.

    (c) The expectations of the Australian Community

33. It is provided in Clause 13.3(1) that:-

    “Non-revocation [of a cancellation] may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that that person should not hold a visa.”

34. Having regard to the history of the Applicant’s offending it is my view that whilst the Australian community might have a degree of sympathy for the Applicant, there would be an expectation that a revocation of the cancellation of the Applicant’s visa would not occur. There is no “one off” offence, but rather repeated offending from the Applicant, even whilst on parole and after he had received a warning from the Respondent after the first major assault that further offending might lead to cancellation. Notwithstanding that warning, the Applicant continued to re-offend.

1. I conclude that this consideration weighs against the Applicant.

   OTHER CONSIDERATIONS

2. The “other considerations” are (Clause 14.1):-

   (a)International non-refoulement obligations;

   (b)Strength, nature and duration of ties;

   (c)Impact on Australian business interests;

   (d)Impact on victims; and

   (e)Extent of impediments if removed.

   (a) International non-refoulement obligations

3. There is no evidence that this is a relevant consideration in this matter.

   (b) Strength, nature and duration of ties

4. The Applicant did establish ties with Australia. He bought a property here with his uncle, he met his wife here, he had good and valuable employment, and he participated in community, church and sporting groups. He was born in New Zealand and was raised in Samoa before coming to Australia.

5. This consideration is one which weighs in the Applicant’s favour.

   (c) Impact on Australian business interests

6. There is no evidence that Australian business interests are affected. The Applicant did make a steady and valued contribution in his trade as a welder. He has continued that trade in New Zealand. Beyond this information there is nothing to support a conclusion that non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (Clause 14.3(1)).

7. Accordingly, this consideration neither weighs for or against the Applicant.

   (d) Impact on victims

8. Other than as set out in this decision, there has been no evidence as to the impact on victims.

   (e) Extent of impediments if removed

9. The Applicant currently resides in New Zealand with his wife and son. He appears to be in good health and he is in employment within his trade. His wife has had employment in New Zealand. There is nothing to suggest that there is any clear impediment in regard to living standards or opportunities in New Zealand. Accordingly, it could be said that this consideration does not further the Applicant’s application.

   CONCLUSION

10. I must weigh the various considerations in coming to a conclusion in relation to the application. I believe that the primary considerations of the protection and the expectations of the Australian community weigh heavily against revoking the mandatory cancellation of the Applicant’s visa to the extent that those considerations, on balance, outweigh considerations that might be said to be in favour of the application succeeding.

11. Accordingly, the decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 11 September 2018

Date(s) of hearing:	31 January 2018 and 11 April 2018
Applicant:	By telephone
Solicitors for the Joined Party:	A Keevers - Sparke Helmore Lawyers