Fifita and Minister for Immigration and Citizenship
[2008] AATA 408
•19 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 408
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0829
GENERAL ADMINISTRATIVE DIVISION )
Re Siupelisiliva FIFITA
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date19 May 2008
PlaceSydney
DecisionThe decision under review is set aside and remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.
…………………[sgd]………………...
Professor GD Walker
Deputy President
CATCHWORDS - IMMIGRATION – visa-ex – whether applicant’s visa should be cancelled on character grounds – criminal record - protection and expectations of the Australian community – best interests of the child – other considerations – primary considerations of community protection and expectations do not weigh strongly in favour of visa cancellation in this case – decision under review set aside.
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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
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 Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Al-Kateb v Godwin (2004) 219 CLR 562
Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
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
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OTHER AUTHORITIES
Direction No 21
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REASONS FOR DECISION
19 May 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Siupelisiliva Fifita was born in New Zealand in 1979 and is a citizen of that country. According to the respondent’s records, he arrived in Australia for the first time on 18 December 1993 for a visit lasting about a month. He says, however, that he first came to Australia in 1991 during the school holidays for about a month. Nothing turns on that discrepancy. He returned again to Australia on 16 May 1999 and was granted a class TY subclass 444 special category visa which allowed him to remain in Australia indefinitely so long as he remained a New Zealand citizen.
2. On 6 June 2007 the applicant was convicted in the District Court of New South Wales of maliciously inflicting grievous bodily harm in company and was sentenced to two years and six months' imprisonment. He was also convicted of the related offence of failure to appear in accordance with a bail undertaking, and was sentenced to a concurrent two-month term for that offence. On 12 September 2004, while on bail awaiting trial for the principal offence, he had left Australia for the United States, where he remained for about a year before returning to New Zealand. He was extradited from New Zealand and for that purpose a state criminal justice entry certificate had been issued on 17 March 2005. That certificate was cancelled on 26 February 2008 (Exhibit R2).
3. At the hearing, the applicant appeared in person while Ms Laura Weston and Mr Lenny Leerdan, solicitors of DLA Phillips Fox appeared for the respondent. 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 together with members of his family gave oral evidence in person. A Tongan interpreter translated for his father.
4. At the hearing, the applicant raised as a preliminary jurisdictional point of law the question whether he had in fact been the holder of a subclass 444 special category visa. After some legal argument, I pointed out to him that it was not necessarily in his interests to pursue the point. As his criminal justice certificate had been cancelled, his right to remain in Australia depended on whether he had actually held a subclass 444 visa. If his argument that he did not have such a visa was correct, he could be removed from Australia in any event. The applicant therefore decided not to press the jurisdictional point.
Issues
5. 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 set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
6. 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:
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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
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(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; …
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7. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(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;
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8. 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.
9. 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.
The applicant’s evidence
10. In his statement dated approximately 21 April 2008 (part Exhibit A3), the applicant explained that he has three older sisters and three younger brothers. Their names, starting from the eldest, are Malia, Latai, Meleseini, Siupeli, Tevita, Huni and Malae. They share the same parents and all were born in New Zealand.
11. He had a reasonably happy but strict and austere upbringing in New Zealand. At school he often had to become involved in fights to protect his younger brother Malae, who suffers from a mental disability and at that time was thought to be autistic.
12. At the age of 16 he was introduced by a couple of high school friends to the drinking of alcohol, in the form of methylated spirits mixed with lemonade. His drinking caused him to be expelled from high school.
13. At 17, he entered the workforce to help support the family. At 19, he left New Zealand for Australia, and stayed with his aunt and uncle for a year before finding his own apartment. He had come to Australia seeking opportunities with good prospects of advancement to help support the family. With the help of his uncle, his brothers Tevita and Huni joined him in 2000, as did his mother with a niece, nephew and Malae in 2001.
14. When he was 17 he would drink every day, as well as smoking cannabis and using cocaine regularly. He would see to it that the bills at home were paid and money put aside for the children before spending what remained on cigarettes, drugs and alcohol.
15. At the time of the offence he had drunk a substantial amount after work. After he returned home, his co-offender George Wolfgramm approached him with his brother Huni. George had given the applicant his cell phone to speak to a Christopher Lenarti, who asked for his assistance in the attack on the victim, Mr West. He had not previously known Lenarti and told him that he wanted no part of it and that he had to sleep to be ready for work. Lenarti then offered him $100 and an ounce of cannabis to participate.
16. After the event he realised what a big mistake it was for him and his brother to be involved. It was cowardly of him to witness the attack and not try to stop Lenarti from striking the victim, but he was in a state of shock and could not believe what he was seeing. For his part in the offence, he served more prison time than any of his co-offenders, but he held no-one responsible but himself. He was truly remorseful for his crime and would try his best to make things right with the victim.
17. He stopped using drugs a month after the attack on Mr West and is continuing to tackle his drinking issues.
18. When he was charged for the crime in 2004, he fled the country out of fear for the safety of himself and his family. Two unidentified men had earlier approached his brother and threatened him that if they talked to the police about anything relating to the attack on Mr West, they would seek to harm their families.
19. He lived and worked in the United States for a year or so before returning to New Zealand to care for his father. He was aware that the authorities would notice his return, but felt bound to return to ensure that his family was taken care of. He was then extradited back to Australia and pleaded guilty to the charges. He was sent to a minimum-security jail.
20. He had never been in any trouble while in jail and always tried to be productive there. He was employed by Corrective Services and found work in the upholstery department as a general hand before being given the opportunity to be a machinist. He was then chosen to apply for a certificate grade 2 in upholstery, and earned certain credits recognised by TAFE.
21. He then moved jails and in his final three months, he worked in the technology department repairing kettles, boilers, sandwich makers etc. With the constant changing of jails, he found he could not settle in long enough to take any drug- and alcohol-related courses. He attended church whenever he could.
22. His brother Malae is highly dependent on him for his wellbeing and for his future. He had also helped to raise his nieces and nephews, and they would be greatly affected if he were removed. That is the only family he has, and separating him from them would affect everyone.
23. In cross-examination he said that after his arrival in 1999, he had initially worked as a butcher and as a storeman, earning about $320 per week as the youth wage, from which he paid approximately $180 per week in rent. He then undertook a security guard course and found employment in that capacity, earning about $800 per week.
24. He lived at first with his uncle and aunt. At that stage he had an alcohol problem and was also using cannabis and cocaine about four times a week.
25. As regards the assault on 19 November 2002, he said that Lenarti had asked for his assistance to “rough up a guy”. He took that to mean that he might be needed to frighten or push the intended victim. He had refused, but Lenarti had offered him $100 and some cannabis. Previously he had not known West or Lenarti. He had been shocked to see that the main perpetrators had come close to almost killing the victim, not simply roughing him up.
26. For a time there had been no consequences, but in July 2004 two detectives approached him at work and arrested him. While on bail he had fled to the United States because of the threat to his family, while his brother had fled separately to New Zealand. He was returned to Australia in 2006 also. He was still in New Zealand when the applicant had returned there from the United States, but six months later he was extradited. Nevertheless, the applicant had always felt that he would be brought back to Australia to face the charges, especially as the detectives had said they were from homicide.
27. He had nevertheless remained in New Zealand without reporting himself to the authorities, deciding to stay as long as he could so as not to put his family in danger. He had known that one day he would be called to account.
28. While in the United States he supported himself by doing concreting work, although he did not have a work visa. While in New Zealand he worked for about six months, but lost his position because of his drinking. He had ceased using alcohol after being incarcerated and would not use it again, but felt that he needed counselling to help him with that resolution. He had tried to obtain help with the problem while in jail, but had been told that because of the respondent's interest in him, he would be deported anyway.
29. Between 1999 and 2002, he had cared for his nieces, nephews, father and brother. He was able to do this because he indulged his alcohol and drug habits mainly in the early hours of the morning. He also held several jobs at various times. Although his mother had been the primary carer for the family, he had been the main provider. During his absence his mother had cared for his brother Malae, and he conceded that she could continue to do so.
30. While in New Zealand he had taken care of his father. His father does, however, own the family home there and although he is currently in Australia, he could return to New Zealand. He himself could do so if necessary.
Other evidence for the applicant
31. The applicant’s father Mr Maki Nalesoni Fifita, in his statement (part Exhibit A3) and his oral evidence (through a Tongan interpreter) stated that his youngest child Malae is highly dependent on the applicant, who has always cared for him. Malae was born with a disability and no matter how old he is, will always require help in everyday living. Mr Fifita’s grandchildren Fatai and Pifeleti would also suffer much hardship if the applicant were deported. The family has no plans to return to New Zealand and would be greatly affected financially and emotionally if it had to.
32. He believes his son is a changed man and greatly regrets, and is remorseful, for his crime. He is heartbroken and repentant in the grace of Jesus Christ. He asks for another chance.
33. In cross-examination Mr Fifita said the applicant had stayed with him in New Zealand between 2005 and 2006. One day the police had come looking for him and had left with Mr Fifita a card with a telephone number for him to call. They returned two days later and took him away. The applicant had told him about the offence on that day, but not previously.
34. Mr Fifita’s most recent arrival in Australia was a month ago. He divides his time between New Zealand and Australia, staying with his wife while he is here, although currently she is in Tonga. Malae is here, staying with him and with his sister Latai. The grandchildren are also with Latai.
35. He was not sure whether his son could remain out of trouble in New Zealand, because there are more opportunities in Australia and he is more satisfied here. When he had paid off the mortgage on the New Zealand house he himself intended to move to Australia. He asked for merciful treatment to enable the applicant to stay with the whole family in Australia.
36. Pifeleti Pifeleti, the applicant’s 11 year-old nephew and a son of Latai, wrote a statement (part Exhibit A3) and briefly gave oral evidence. He said the whole family would be upset if the applicant were returned to New Zealand. He is like an older brother to Pifeleti because they were raised together by his grandmother. He could remember even when he was four years old that the applicant cooked his food, took him to school and for walks, gave him lunch money and generally looked after him.
37. Mrs Latai Pifeleti, a sister of the applicant, in her statement of 17 April 2008 (part Exhibit A3), stated that her two children Fatai, aged 14, and Pifeleti aged 11, had been raised by her mother and had grown up with the applicant all their lives. They look up to him greatly and when he went away they missed him tremendously. When he was brought back to Australia, even when he was in jail they were happy to know that they were able to see him and would cry at every visit, but hoped he would be released soon. They were very distressed when they learned that he was in Villawood and would not be released.
38. The applicant had left the country only because he feared for the safety of the family. He was afraid that the people with whom he was involved might hurt them and felt that his only option at the time was to leave everything that he loved behind.
39. Her mother found it very difficult after he left because she could not continue to pay the rent and had to move out. The applicant had always looked after her parents because he was unmarried. He always tried his best to support their parents and always put everyone else before himself. He is hardworking and reliable, and had always been employed. He also took care of Malae and always had time to spend with him.
40. After his father had a second heart valve replacement, it was decided that he would spend most of his time in Australia so that the family could taken care of him. He returns to New Zealand mainly for church conferences and family matters.
41. There is no-one back in New Zealand to return to and she is afraid for what would happen to the applicant if he were to return there, as they could not afford to visit him often and if he fell sick, there would be no-one to take care of him.
42. She felt that the applicant’s involvement in the crime was very much out of character. He is a warm and caring person, always helpful and always giving his nephews and nieces good advice and helping with their homework.
43. She believes he is remorseful and regrets all he has done. He has learned a great deal from his experiences and will not re-offend. He would never put his family through that.
44. The applicant's mother in her statement dated 16 April 2008 (part Exhibit A3) outlined the family history and explained that her youngest child Malae was born autistic and needed much care while growing up. He needed all of his mother’s attention and the help of his brothers and sisters. He is illiterate and has a speech impediment, and his brothers and sisters are the only ones who understand him and his wants and needs. The applicant is the only sibling who spends a lot of time with him and gives him the attention he needs. Malae and her grandchildren look up to the applicant for guidance and advice and would be greatly hurt if they did not have him in Australia. Since his absence, Malae has been arrested, spent a week in jail and constantly finds himself on the wrong side of the law. She fears that he will be taken advantage of and will be influenced to do bad things as he is very vulnerable to others. She had previously been able to leave Malae in the applicant’s care.
45. After the applicant left in 2002, they could no longer afford to live in their rented apartment and had been forced to live with her daughter. The applicant’s role as the eldest son holds great responsibilities in the Tongan culture.
46. The pressures that were placed on him were the reason for his heavy drinking at an early age and being twice expelled from school.
47. Money had always been a problem for the family and the applicant had been working for them and helping to support them since the age of 17, right up until the date of his incarceration in December 2006.
48. Statements of support were also received from the applicant’s sister Malia Puloka in the United States, his sister Meleseini Sisifa, his niece Leiona Sisifa, and his nephews Joshua and Siaosi Sisifa. Mr Mrimnoy Kumar Das stated that he had worked with the applicant in a printing company, Greenloch Print Essentials, of Botany, and had found him to be hardworking, reliable, honest, bright, energetic, compassionate and genuinely well-rounded. He is also a problem-solver who puts much thought into what he does. He has an unusual ability to notice what others overlook.
49. Mr Kazi Bodruddaza, who also worked with the applicant at Greenloch, wrote a letter to the same effect. Mr Ioana Pifeleti, a supervisor at TNT Express at Mascot, New South Wales, spoke highly of the applicant’s time when he was working for Mr Pifeleti at Toll Priority for four years. He would be happy to employ the applicant at TNT or Toll. He knows that the applicant regrets joining the wrong group of friends that led him into trouble and is totally convinced that he has learned a valuable lesson from his actions.
50. The applicant also tendered a report dated 12 November 2007 Malae by Dr Sophie Kavanagh, a staff specialist psychiatrist with the Sydney South West Area Health Service, on the applicant's brother Malae. The report is quite detailed but concludes that Malae has a moderate intellectual disability but there is no evidence of any significant mental illness. He needs a more structured life and meaningful activities, including being linked in to a peer group. He would benefit from case management through the Department of Ageing, Disability and Homecare.
51. A psychologist’s report dated 15 August 2008 (correct date confirmed by the applicant as 15 April 2008) by Mr Alex Lutherborrough, a psychologist with Professional Support Services, on the applicant himself, was also tendered. Mr Lutherborrough reports that the applicant voluntarily attended and is in the process of completing the anger management course run by Professional Support Services at Villawood.
52. He has been a willing and active participant and demonstrated a commitment to applying the techniques of anger management. He felt that the applicant shows good insight into how to manage anger and has been able to discuss how other personal problems, such as earlier alcohol use, have affected him and his previous difficulties. “Mr Fifita shows an open and realistic attitude to his situation and appears to have good potential for progress in the community” (part Exhibit A3).
Respondent’s submissions
53. On behalf of the respondent Ms Weston submitted that the case possessed three unique and determinative factors:
§The applicant had lived in Australia for only three years before the offence and two years after it, making a total of only five years;
§He had shown a willingness to leave Australia and his links with this country were tenuous. He had gone to the United States and did not return to Australia voluntarily; and
§He had participated in a callous, brutal and anonymous crime.
54. By reason of his prison sentence, the applicant failed the character test because of his substantial criminal record within the meaning of s 501(7) of the Migration Act 1958 (Cth) (the Act).
55. As regards the application of the discretion, he had committed a particularly serious crime, a premeditated assault on a person unknown to him at the instance of anther person unknown to him. His life had been characterised by a continued battle with alcohol and drugs. That could continue in the future.
56. His subsequent acts were also telling. He had remained in Australia for two years, together with another two years overseas, without contacting the authorities or informing his family about his crime. It had been necessary to extradite him. He had said he had returned to New Zealand from the United States knowing that he was in effect surrendering, but his brother had lived there for two years without being approached by the authorities. He had known that the plan was for him to be involved in roughing up the victim, but portrayed himself as being really a witness. As he had not therefore taken responsibility for his offence, he could re-offend. The motives of money and drugs could not be discounted for the future and he had taken no steps to overcome his alcohol addiction.
57. His failure to appear on bail also contradicted his assertion of repentance and remorse.
58. The community would expect that a non-citizen who committed a brutal crime after a short period in Australia would not be permitted to remain here.
59. As regards his family, he had never been a principal carer for his niece, nephew or brother. The family could carry on in the future as they had for the last four years.
60. None of the other considerations outweighed the primary factors of community protection and expectation. He had stated too highly his family’s reliance on him. His father divides his time between New Zealand and Australia and his mother is currently in Tonga. Considerations of family composition were not such as to outweigh the primary considerations.
61. The three unique features of the case mentioned earlier, his brief stay, his willingness to leave and the seriousness of his crime, fed directly into the three main considerations to which paragraph 2.2 of Direction No 21 required the tribunal to give primary consideration.
Application of the Law and Findings of Fact
62. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to his past and present general conduct. 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:
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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…
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In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
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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).
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63. 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 at 781).
64. 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.
65. In this case the applicant was convicted on 6 June 2007 of the offence of maliciously inflicting grievous bodily harm in company and was sentenced to two years and six months’ imprisonment. That constitutes a “substantial criminal record” within s 501(7) of the Act, and consequently the applicant fails the character test in s 501(2).
66. 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:
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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.
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67. Paragraph 2.3 sets out the primary considerations:
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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.
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Paragraph 2.4 explains:
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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.
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68. 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.
69. 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
70. 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(f) that crimes of violence against persons are to be treated as very serious.
71. This case is unusual in that the applicant, apart from incurring a drink driving conviction in New Zealand, has only one conviction. On 6 June 2007 he was sentenced to two years and six months' imprisonment for maliciously inflicting grievous bodily harm in company, and to a concurrent two months for the related offence of failure to appear in accordance with a bail undertaking.
72. It is important to note Judge Zahra’s sentencing remarks in some detail. It appears that the assault on the victim, Cameron West, had its origins in a dispute at the Silverwater correctional facility in November 2002 between the victim and Ken Tan, the principal offender.
73. Tan recruited some associates to “help him with a job” and one of them, George Wolfgramm, in turn contacted the applicant and his brother Huni Fifita. The applicant had not previously known either Tan or the victim.
74. The applicant and his brother travelled with Wolfgramm and another to Burwood, New South Wales, where they met Tan and others. It was alleged that Tan had said to them that “someone’s put a hit out on me and I want you guys to go do this thing for me before something happens”. The applicant was promised a small quantity of cannabis and $100.
75. The offenders travelled in two cars to the victim’s residence at Camperdown, New South Wales. The applicant said in evidence that there were no weapons in that car.
76. The offenders lured the victim out into his driveway, where the co-offenders struck repeated blows to his head with a metal object, a baseball bat and other implements. The applicant kicked the victim to dislodge a knife from his hand, but apart from that did not strike him and his role consisted of dragging the victim from an area where cars were parked. He said he had not seen any weapons until the attack on the victim commenced.
77. The victim was treated in hospital for fractures to his jaw and ribs and received 60 sutures to a laceration to his head. He later developed a blood clot in the leg and continued to suffer from post-traumatic stress following the assault.
78. At an interview with police the applicant admitted his involvement in the attack. He said that Lenarti had contacted him saying that he needed help to “beat up this guy”. He had been reluctant to do so but had eventually agreed.
79. Zahra J observed that the attack on West was an extraordinarily brutal and vicious one, which the applicant himself in his evidence had appropriately called a cowardly attack. His Honour continued (at G pp58-59):
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There are a number of features of the offender’s role that, however, need to be considered:
1.He was not an organiser. He was not involved in approaching any of the others and it appears that he was the last to be recruited.
2.At the time he was contacted, he was at his home and he had already consumed a quantity of alcohol and was, to a degree, affected by alcohol. It is likely that his judgment was impaired, however, one is not able to conclude that he was significantly affected.
3.At the time he agreed to become involved, he was not aware of the full extent of the acts that he was to be involved in. He said that, when he was being driven to the victim’s home, none of the occupants of the car he was in had weapons. I cannot be satisfied that he knew that weapons were to be involved before the weapons were used on the victim.
4.I cannot be satisfied that he played any role other than the one he has indicated in the record of interview and in evidence before me. I cannot be satisfied that, apart from kicking the victim to dislodge a knife from his hand, dragging him from an area where cars were parked, he had struck or held the offender so that he could be struck.
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80. His Honour also noted that the applicant had expressed remorse for his actions during the proceedings on sentence and that remorse appeared to be genuine. “He said that if he had known the full extent of what was to occur at the outset, he would not have been involved” (G p54). The pre-sentence report had also noted that the applicant had acknowledged the seriousness of his actions and had expressed regret for his part in the offence. A note from the metropolitan remand centre chaplain stated that the applicant had a great deal of remorse and was very keen to participate in a restorative justice process. Even though he said he had not laid a hand on the victim, he recognised that just being there was bad enough.
81. He had pleaded guilty and that, in part, was a manifestation of his remorse. The plea of guilty was entered soon after his return by extradition from New Zealand. “He impresses as a person who, through obvious remorse for his acts, has gained considerable insight into his offending and to some of the causative underlying reasons leading to the decision to become involved” (G p60).
82. As regards the prospects of rehabilitation (G p60), his Honour had this to say:
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The offender has no prior history of violence. He is genuinely remorseful for his acts and has insight into the underlying issues to his offending. The offender has since addressed his difficulty with drug taking and has an appreciation of the need to further address potential drinking problems. Some considerable time has now passed since this offence was committed, some four and a half years, and he has not further offended. I am of the view that he has good prospects of rehabilitation and is unlikely to offend.
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83. Ms Weston rightly described the offence as a callous, anonymous and brutal crime. At the same time, it is important to note that the applicant was neither an organiser nor a substantial participant in the acts of violence. He had been led to participate not only by unworthy material motives, but also by the assurance that he was engaged in a kind of pre-emptive strike to prevent serious violence against Tan. That belief would not, of course, justify any kind of assault, but it does cast some light on the gravity of his involvement and on his prospects for rehabilitation. All that said, however, the applicant's record must be described as very serious.
84. The next issue for the tribunal to consider is the risk of recidivism. The applicant has only one significant conviction, but 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].
85. Zahra J was persuaded that the applicant's expressions of remorse were genuine, as was the remand centre chaplain. His family members were also strongly of that view, although with all due respect to them, close relatives are not necessarily to be regarded as the most objective of witnesses on such matters. The respondent argued that his absconding on bail contradicted his professed remorse, but I think his claim that his main motive was to reduce the risk that his family might be harmed by his co-offenders was probably genuine. The facts of the case show the viciousness and deviousness of the principal offenders clearly enough.
86. Mr Lutherborrough noted that the applicant had been a willing and active participant in his course at Villawood and concluded that he had “an open and realistic attitude to his situation and appears to have good potential for progress in the community”. He has a good work record and an offer of employment in worthwhile work. His family (apart from Malae, whose current waywardness may be accounted for by other factors) appear to be upstanding people and, as Zahra J noted, are supportive of him (G p54).
87. He overcame his drug addiction through their support and by his own concerted efforts. He has not consumed alcoholic beverages since his incarceration, and while he believes he needs counselling to ensure that he does not relapse in that regard, he seems determined to avoid excessive drinking in the future, and I think he has the ability to stand by that resolution.
88. In his submissions he pointed out that he had taken very seriously his New Zealand conviction for driving under the influence and had never repeated such an offence in the subsequent 10 years, despite having many opportunities to do so. That was proof that he could live up to his pledge not to re-offend in the future.
89. 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. The concept can perhaps also be 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.
90. 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.
91. 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”.
92. The applicant himself in his submissions noted that Zahra J had been of the view that the principles of general deterrence would clearly apply in the present case. Those principles are not, however, inconsistent with allowing a second chance to an offender with only one significant conviction who has displayed genuine regret and remorse and made substantial progress towards rehabilitation.
Expectations of the Australian Community
93. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
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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.
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94. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). Consistently with those principles, it has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47). Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
95. 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).
96. 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).
97. 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)).
98. If the applicant had been an organiser or substantial participant in the assault, I think the community might well have considered that offence in itself enough to warrant visa cancellation. As he was not, however, and has also made substantial progress towards rehabilitation and appears to present little risk of recidivism, I think it quite possible that the community would be prepared to extend some leniency to him.
The Best Interests of the Child
99. 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 that 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)).
100. The applicant has no children. His brother Malae is over 18 and his position should therefore be considered as one of the other considerations. The evidence shows a relationship between the applicant and his nieces and nephews. They appear to be fond of him and would experience some distress if he were removed to New Zealand. The applicant has never been their primary carer, however, that role being performed, apparently satisfactorily, by their mother. There is nothing in the evidence to suggest that their development will suffer in any way if he is removed to New Zealand.
101. They would miss him and might well experience some distress for a while, and to that extent one could conclude that it is in their interests that he remain in Australia. The consideration of the best interests of the child does not, however, weigh substantially against visa cancellation in this case.
Other considerations
102. 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.
103. Most of the applicant’s family are in Australia and they would experience some emotional hardship if the applicant were removed to New Zealand. But they have coped without him for the last four years and could no doubt continue to do so. The applicant’s father divides his time between New Zealand and Australia, and the applicant could resume caring for him in New Zealand as he did before he was extradited.
104. More difficult is the position of his younger brother Malae, who is intellectually disabled, although he does not suffer from any mental illness. He needs constant care and guidance and until he was incarcerated, the applicant fulfilled that role, developing a close relationship with Malae in the process. The applicant’s mother partly attributes Malae’s recent bad behaviour to the absence of the guidance and supervision that the applicant had previously provided. The other family witnesses also attest to his role in that regard.
105. Although he has never been Malae’s primary carer, I think his role has been a significant one and that given Malae's continuing problems it is a factor that weighs significantly against visa cancellation in this case.
106. The applicant has not previously been warned about the possibility of visa cancellation. As has been outlined above, there is substantial evidence of rehabilitation and the risk of recidivism appears to be minimal.
107. Ms Weston presented the respondent’s case as forcefully and cogently as the facts would bear. But in light of my conclusion that in this case the primary considerations of community protection and expectations do not weigh strongly in favour of visa cancellation, I conclude that this is one of the rare cases in which the other considerations carry the day.
108. The discretion should be exercised in favour of not cancelling the applicant's visa and the decision under review is therefore set aside. No doubt the applicant will receive a formal warning The matter is remitted to the respondent for reconsideration on that basis.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ………………[Sgd]……………………………………
Renee Wallace, Associate
Date/s of Hearing: 13 May 2008
Date of Decision: 19 May 2008
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Ms L Weston and Mr L Leerdan, DLA Phillips Fox
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