Filipo and Minister for Immigration and Citizenship
[2008] AATA 1144
•19 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2008] AATA 1144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4895
GENERAL ADMINISTRATIVE DIVISION )
Re Lokenitama FILIPO
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date19 December 2008
PlaceSydney
DecisionThe decision under review is affirmed.
…………………[sgd]………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation on character grounds – applicant does not pass the character test – whether tribunal should exercise discretion to cancel the applicant’s visa – Direction 21 applied – community protection and expectations outweigh the best interests of the children and other considerations in this case.
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RELEVANT ACT/S:
Migration Act 1958: ss 499, 501
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Green v Minister for Immigration and Citizenship [2008] FCA 125
R v Henry (1999) 46 NSWLR 346
Tien Hung Vu v R [2006] NSWCCA 188, BC 200604589
Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
Al-Kateb v Godwin (2004) 219 CLR 562
Re 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 December 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Lokenitama Filipo was born in Niue (east of Tonga) in October 1982 and is a citizen of New Zealand.
2. When he was aged two, he was taken to New Zealand where he was raised by his grandmother and an aunt. He spent most of his life in South Auckland until the family moved to Australia on 23 January 1999, when he became the holder of a class TY subclass 444 special category visa.
3. He has never married and is not currently in a de facto relationship. He has no children.
4. The applicant was dealt with in Ipswich Magistrates’ Court, Queensland, on 28 February 2001 and on 6 August 2001 for receiving stolen property. No convictions were recorded but he was placed on a bond for one offence and fined for the other.
5. Thereafter he was sentenced in the courts on six further occasions:
02/12/2002 Convicted of breaching a bail undertaking; fined $400;
28/03/2003 Convicted of breaching a bail undertaking; fined $180;
01/09/2003Convicted of breaching a bail undertaking; sentenced to two months' imprisonment, wholly suspended for six months;
08/12/2003Convicted on breaching a bail undertaking and breach of a suspended sentence; sentenced to three months' imprisonment;
01/04/2004Convicted (Queensland District Court, Ipswich) of assaults occasioning actual bodily harm in company; sentenced to six months' imprisonment, wholly suspended for six months; and
17/08/2004Convicted (Queensland District Court, Ipswich) of robbery with actual violence in company with another person and using personal violence, robbery with actual violence in company with another person, grievous bodily harm, and assaults occasioning actual bodily harm in company; sentenced to four years and six months' imprisonment.
Also convicted of obstruct police officer and assault police officer, for which he was not further punished.
6. He also has a substantial record of traffic offences, including one suspension. It would appear that in Queensland the traffic record includes offences committed on the railways, as there are seven separate convictions and fines for travelling or attempting to travel without paying the correct fare and obtaining a ticket, between December 2000 and July 2003.
7. On 9 October 2008 the applicant was faxed a notice of cancellation of his visa, which he received on 13 October 2008. On 20 October 2008 he applied to this tribunal for review of the cancellation decision.
8. At the hearing, the applicant appeared in person while Ms Alice Linacre of Clayton Utz appeared on behalf of 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 gave oral evidence in person.
9. The applicant had previously indicated that he would be calling his parents, an aunt and uncles to give oral evidence by telephone (as they live in Queensland) but said at the conclusion of his own evidence that there had been a change of plans and he had decided not to call them. He had told them it was too much, as they were too busy, with Christmas just around the corner. He tendered written statements by his father and his adopted sister, however.
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 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
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:
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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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12. “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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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.
The applicant’s evidence
15. At the hearing the applicant adopted his statement of 21 November 2008 (Exhibit A2) in which he wrote that he had been thinking long and hard about his life. He had never thought it would come to the position that he would be leaving his family, as his grandmother, who raised him, had passed away. The remainder of his family lived in Australia, and he had not contacted them because of his incarceration.
16. Imprisonment had taught him the importance of life itself. He believed that five years was enough punishment for an individual. He had acknowledged his offences and now comprehended what was needed to develop into a model citizen.
17. He had decided “to stay and fight” as he believed that after all the consequences, he had accepted full responsibility and had accomplished numerous courses. He would use the knowledge he had acquired to become a role model for his siblings, as he was the eldest of seven. He had let down his family as well as the families of the victims whose lives he had changed dramatically. He was deeply remorseful for that. His parents are all he has and they love him very much as do his three brothers and three sisters, aunts and uncles. “Friends who I have attended school with, support me till this day but I have to contain things for myself and for my future, if I have to leave I would understand and appreciate the outcome”.
18. In cross-examination he was referred to the psychological report for the Southern Queensland Regional Parole Board by Mr Gavin Palk, consultant psychologist, dated 4 October 2007 (part Exhibit R1, at paras 4.1 to 4.3).
19. The report noted that, “The assault and robbery related offences involved the prisoner together with a number of co-defendants randomly attacking male victims in a number of separate incidents between 2002 and 2004” (at para 4.2). The modus operandi would involve approaching a man or two men walking through a park and requesting some cigarettes. The victims’ path would then be blocked, whether or not they complied with the request. They would then be searched for other property and then assaulted. Mobile phones, ATM cards and cash were stolen.
20. His explanation for how he had come to commit those offences was that people who are young do silly things and that he had already paid for his crimes. He was 26 now and could not go on forever.
21. He had been hanging out with his co-defendants, doing “silly stuff”. He now realised it was more than “silly”, as he was better educated. Although he had known at the time that what he was doing was wrong, he did not think about what he was doing. He was prompted by the effects of cannabis and alcohol. He had begun using drugs at the age of 11 in New Zealand and had consumed amphetamines, heroin and ecstasy. Now he would only drink on special occasions or when going out but would avoid cannabis as it “leads to other stuff”.
22. Under the heading “Release Plans”, the psychological report stated that he intended on release to live with his brother (para 12.1). That was actually a reference to his first cousin, Ossie Filipo, who lives in Queensland. He has been in telephone contact with him and it had always been understood that the applicant could reside with him. He was closer to Ossie than to his immediate family.
23. Ms Linacre pointed out that Richards DCJ in the Ipswich District Court had noted that one of the applicant’s victims, a Mr Thompson, “was just minding his own business and has now ended up with a permanent disability” as a result of the assault by the applicant and his confederates. The applicant replied that he could not recall what he had done on that occasion, and the statement that Mr Thompson was just minding his own business was just something that he himself had told the police. But he had now paid for his mistakes and in jail had learned to live his own life, and felt better about himself. It did not matter what anyone read about his prospects of re-offending. What was he supposed to do, he asked rhetorically, return to crime like everybody said he would? He repeated that odd pair of questions two or three times in the course of his cross-examination in a plaintive tone implying that he was being unfairly treated.
24. While on bail for that offence, he had committed other violent assault and robbery offences against young boys returning from work (presumably they were in their late teens). Richards J noted that he had helped one victim to his feet, but thought it was “pretty chilling to think of you kicking him in the face and then adjusting your hair so you could see”.
25. Asked if being placed on bail for the assault on Mr Thompson should have been a wake-up call, he replied that that was then. Now he had plans for the rest of his life. He wanted to start an art business, which is what he was good at, as he had a contact with the proprietor of an art shop. His only art education had been art courses at school, however, and he had never presented any displays or exhibitions.
26. Commenting on the passage in the psychological report stating that some of the assaults were very severe and included punches to the face and kicks to the head, in one case the victim’s head being smashed into the concrete pathway, leaving him unconscious (para 4.3), he said that such things were human nature. What he had done was something you could not stop. Asked about the comment that he was “prone to violence”, he replied that “It’s always around”.
27. He acknowledged, as the psychological report recorded (para 10.1), that throughout his imprisonment he had incurred numerous breaches of prison regulations, including six major and numerous minor ones, since April 2004. He had committed those offences because he was bored. He acknowledged that he was not a model prisoner but then asked, “What is a model prisoner?”.
28. Richards DCJ had recommended that he be considered eligible for post-prison community-based release after serving 15 months, but he had disqualified himself from that program through his breaches of prison regulations. He agreed that he had done stupid things but said he had not been thinking about what he was doing and just wanted to do his time.
29. The psychological report also noted that during his employment in custody he had often arrived late for work and had been terminated from various positions for being late and using abusive language (para 10.2). He replied that he had acted in that way because it made it fun.
30. His attention was then drawn to the Borallon Correctional Centre Assessment Unit report for the Brisbane Regional Community Corrections Board by Emma McDonagh and Carly Osborne dated 23 May 2005 (part Exhibit R1), recommending against parole, home detention and release to work. Ms Linacre put to the applicant some of the reasons for their recommendations (p2, para 1). As to “Limited victim empathy”, he said that he had not cared about the situation or about his victims at the time. He had now taken responsibility and had completed courses. He had long been sorry for what he had done.
31. In relation to “Lack of insight into offending behaviour”, he said he had committed his crimes because he was bored. “What else do young people do when they are bored? They do stupid stuff”. When it was put to him that his conduct was more than stupid, he replied that everyone has their own opinion. He had taken responsibility but his punishment continued today. It had changed his life. He did not know what happened in relation to Mr Thompson. While the judge had said Mr Thompson was “quite old”, she should have actually stated his age, as it was his (the applicant's) life. He had taken responsibility and been punished over and over. He had paid enough for his crimes. Asked if he thought his punishment was deserved, he said he did not know what punishment means, and that the respondent would not understand.
32. In relation to the assessment that he was at moderate risk of re-offending, he replied that he was over it, he just wanted to live his life. The respondent was bringing back the ghosts of the past. He had had to be in and out of jail for a third of his life and had paid for his offences. He was not a kid anymore.
33. As regards his family, he had two nephews, aged five years and 13 months respectively, who were his sister's sons. He had only met them once when he was out of jail but had telephone contacts and some visits. Asked if his family would miss him, he replied that he had come to terms with his family, as he had not been around previously. They had, however, always been there for him and had wanted to attend the hearing but he had said it was too much for them with Christmas approaching. They were worried about the case.
34. His de facto relationship with Sarah Waikato had ceased. All his family were living in Australia and none remained in New Zealand, although he had childhood friends there.
Applicant’s supporting evidence
35. The applicant did not call any oral evidence in support of his case but tendered two written statements. One, by his father Mr Lokenitama Filipo Senior (Exhibit A3), pointed out that the applicant has no family in New Zealand as they are all here in Australia. The applicant is his first son and he does not want him going anywhere without his family. “He’s never spent that much time with his family and we are hoping for him to stay with us here in Australia”.
36. He also had a nephew and niece who would love to spend more time with their uncle and he is wonderful with them. All were going to miss him and hoped that he would receive a second chance here in Australia.
37. The applicant’s adopted sister Vaiole Mataafasi in her letter of 24 November 2008 (Exhibit A4) said that she had known him since the day he was born and they had grown up together as brother and sister. His father is in fact her uncle. He was a good kid with a good heart who went out of his way to help anyone in need. He loves spending time with her two sons as if they were his own siblings. He had helped her through a difficult time by giving her some good advice on how to cope.
38. Having him absent from their lives again would be very sad as all his family are in Australia and he has no-one in New Zealand to go to.
Psychological evidence
39. Before the tribunal were two assessment reports, one dated 23 May 2005 prepared by the Borallon Correction Centre Assessment Unit for the Brisbane Regional Community Corrections Board, and the other, dated 4 October 2007, a psychological report for the Southern Queensland Regional Parole Board prepared by Mr Gavin Palk. Both reports are quite detailed but a number of their salient observations should be noted.
40. Borallon report: This report, prepared by Emma McDonagh and Carly Osborne recommended against release to work, home detention and parole. In relation to the assault on Mr Thompson, the report observes as follows:
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The applicant was in disagreement with the official version. He completely minimised his responsibility in the commission of the offences, and failed to recognise the seriousness of his offending. He advised he was excessively under the influence of THC and alcohol. The applicant disputed a number of the facts such as the age of the victim stating he was much younger than that detailed in the Sentencing Transcript. He was flippant when discussing the injuries his victim sustained. He was initially unable to recall the offences committed against the other victims but when challenged by the writer he advised he had terrorised them, thinking it was a fun thing to do at the time. He denied kicking the person in the face, rather it was his cousin who had the same haircut as himself and the witnesses were confused, and further that the victim supported his version of events.
He struggled to articulate the effects of his offending behaviour focusing on the consequences for himself such as his current imprisonment. Further, although he considered the offences were serious, this was in the context of him having being sentenced to a term of imprisonment, rather than the nature of the offences.
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41. He had completed the anger management program on 23 March 2005, with variable motivation, attitude and conduct and a degree of immaturity. He had not undertaken any vocational or educational programs at that stage.
42. He was initially assessed as a high security classification and remained high at his two subsequent assessments but progressed to a medium classification on 14 April 2005. He was considered to be a quiet prisoner demonstrating acceptable conduct but his work performance was less than satisfactory.
43. The applicant had a long history of substance abuse, commencing on THC (marijuana) at the age of 10, smoking on a daily basis and spending $50 a day at the height of his addiction, and used up to his current incarceration. He first tried amphetamines at 17, using once a week intravenously until he was 20. He had also tried “ice”, heroin and ecstasy. He first consumed alcohol at the age of 11, up until his current incarceration.
44. The only high risk factor he nominated was his poor choice of associates. He denied that his use of alcohol or drugs presented a risk of re-offending, despite acknowledging that he was under the influence at the time of committing his then current offences. “His nominated strategy of ‘staying away from everything’ is completely unrealistic and is representative of his failure to have fully considered his offending behaviour” (at p7 of 8). He had not fully developed an understanding about the antecedents, risk factors, motivations and thinking patterns regarding his criminal conduct.
45. He remained at substantial risk of re-offending. A number of other factors increasing his risk to the community included the serious nature of his offences, his minimisation of his responsibility in his offending behaviour, his lack of victim empathy, his lack of support networks within the community, his poor custodial employment history, his current medium security classification and his assessed medium risk of re-offending.
46. Palk report: Mr Palk also recommended against leave of absence and settlement leave but thought a short period of parole might be a realistic option if designed to provide him with opportunities to address his proneness to violence and provide him with high levels of supervision.
47. Although he accepted responsibility for his offences, there was a tendency to externalise the blame and rationalise his behaviour. For example, he complained about poor memory in relation to some of the offences due to intoxication and suggested someone else was the actual perpetrator of one of them. His level of risk for committing further property offences was assessed as moderate and for future acts of violence also as moderate.
48. While he did express some sorrow for the victims of his offences, his sorrow appeared shallow and he seemed to lack insight into the serious consequences of the assaults.
49. His current classification level was high as a result of legislative amendments, but had previously been medium. Throughout his imprisonment he had incurred numerous breaches of prison regulations, including six major breaches. While employed in custody he often arrived late for work and had been terminated from various positions for being late and using abusive language. Overall, his behaviour was regarded as being lower than an acceptable standard, but there had been an improvement in more recent times, especially when he was provided with higher levels of supervision.
50. He had undertaken a number of educational programs, including Education for Resettlement Transitions, Cognitive Skills, Substance Abuse Preventing and Managing Relapse, Anger Management and Ending Offending as well as a number of business certificates. He was also currently undertaking tertiary preparation studies.
51. On release he intended to reside with his brother (cousin) and resume his old employment as a floor tiler with AMKO Tiling (where he has an offer of employment).
52. Testing showed a strong proclivity towards anti-social behaviour. He was inclined to be argumentative and hostile, with a tendency to blame others for his problems. His test scores were similar to those of individuals having a marked history of violence and aggression. At times he appeared to lack remorse for his victims or understand the suffering he had caused them. His overall affect seemed rather flat and shallow. His scores on all items placed him in the moderate risk range for future acts of violence.
53. His overall level of intelligence was on the borderline of average to below average intelligence. His scores indicated that he has some cognitive processing problems, possibly due to neurological damage related to alcohol or drug abuse or as a result of a history of learning difficulties associated with minimal brain dysfunction syndrome.
54. His history of violence might be related to compensation for low self-esteem, a need to prove his manliness, as well as cultural and adult adjustment difficulties. There was some evidence that during his imprisonment he had begun the process of maturation. Overall, however, he is strongly inclined towards anti-social behaviour and his risk of re-offending was assessed as moderate. He appeared to be most at risk of committing violent offences when abusing alcohol or drugs and in the company of anti-social peers, and when he is unemployed and bored.
Applicant’s submissions
55. At the conclusion of the evidence the applicant said he did not wish to make any submissions. I put a number of questions to him, however, in an attempt to elicit more about his side of the case. I began by asking him if he wanted to say anything more about the assault on Mr Thompson. He replied that he had said all there was to say about him. Every time he tried to do good, “this stuff keeps popping up” although he had served his time.
56. His nieces and nephews know who he is and he wants to get to know them. The ones he knows best are his adopted sister’s boys, Stephen aged 12 and another aged nine whose name he could not recall.
57. He was in contact with Stephen and his brother and had stayed with them at weekends after being released from prison in April 2008. Previously he had been in contact with them over the telephone and their mother had given him news of them.
58. He had not undertaken a drugs program while in prison because he had not used prohibited drugs after going to jail.
Application of the Law and Findings of Fact
59. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and (7), the applicant passes the character test having regard to his serious criminal record.
60. 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.
61. In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(6)(a) and (7), as he was sentenced on 17 September 2004 to four years and six months' imprisonment for robbery with actual violence and other offences.
62. 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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63. 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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64. 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.
65. 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
66. 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. In this case, the applicant was convicted on 17 September 2004 of robbery with actual violence in company with another person using personal violence, robbery with actual violence in company, assault causing grievous bodily harm, assaulting police and other offences, for which he was given a combined sentence of four years and six months' imprisonment with a non-parole period of 15 months.
67. In relation to the principal offence, the assault and robbery against Mr Thompson, Richards J observed:
… this is just shockingly bad behaviour – particularly against Mr Thompson who was just minding his own business and has now ended up with a permanent disability. He is out at least $10,000; he has split with his wife; he has lost his job all because of what you and your thug mates did to him on the 30th of November 2002. And he is still receiving treatment for his injuries.
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68. Her Honour continued:
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Whilst on bail, you then committed another two robberies against young boys who, as I said, were minding their own business, walking home from work. And then after a break of some time, again whilst on bail, you committed yet another assault occasioning bodily harm in similar circumstances to the other offending.
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69. Her Honour noted his age and his plea of guilty, but no other mitigating circumstances were mentioned.
70. The applicant’s other criminal convictions have been referred to above.
71. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
72. The applicant mentioned his youth at the time of the offences as a mitigating factor, adding “What else do young people do when they are bored? They do stupid stuff”. Youth and boredom do not, however, in my view, significantly mitigate offences of the kind of which the applicant has been convicted.
73. The applicant also said that his offending was prompted by drugs and alcohol. As Ms Linacre pointed out, Richards J’s finding that he had kicked one of his victims in the face and then adjusted his hair so that he could see, tended to suggest a degree of awareness and control. In any event drug addiction is not viewed as a mitigating factor in the sentencing of drug offences (R v Henry (1999) 46 NSWLR 346 per Spiegelman CJ at pp382-395; Tien Hung Vu v R [2006] NSWCCA 188, BC 200604589 at paras 59-64).
74. Indeed, the tribunal has taken the view that it may be an aggravating factor in s 501 visa cancellation cases: “When the use of drugs leads to the commission of other crimes the like of those engaged in by the Applicant a situation arises where the community has the greater need to be protected” (Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at para 34).
75. Drug addiction may, however, be “pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case” (Henry at p382).
76. The next issue for the tribunal to consider is the risk of recidivism. 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]). The applicant has multiple convictions for a series of unprovoked and violent assaults. Some were very severe, involving kicking the victim in the head or smashing the victim’s head against a concrete pavement. One victim was permanently disabled. He has re-offended while on bail and while under a suspended sentence.
77. He has undertaken appropriate courses while in custody but his performance in them has been variable. He has accepted responsibility for his crimes, but seemingly on a rather shallow level, as he appears still to lack empathy for his victims, especially Mr Thompson, whose life he devastated. He said repeatedly, and in terms of some indignation, that he had paid the penalty for his offending and said he should not be punished over and over and that he had paid enough. He tended to minimise the seriousness of his offences, and of violent crime generally, and seemed to see himself to some extent as a victim.
78. Although his behaviour in prison had improved towards the end of his sentence, he was nevertheless assessed as being at moderate risk of re-offending. Having observed the applicant in the witness box, I accept the correctness of that assessment.
79. He says that he has not used illicit drugs since the start of his recent period of incarceration and would not return to them. Although he would continue to consume alcoholic beverages, he would only do so on special occasions or if going out. Those resolutions may be genuine but they have not been put to the test outside the controlled environment of prison and immigration detention.
80. He states that if released into the community he would live with his cousin Ossie Filipo in Queensland. He has a good work record as a wall and floor tiler with AMKO Tiling, at Goodna, Queensland, and an offer of employment from that firm’s proprietor, Mr Johann Koorts (part Exhibit R1).
81. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132, a deportation matter, the tribunal stated:
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The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism. … even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
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82. If the applicant were to repeat the crime of assault, robbery or inflicting grievous bodily harm, serious physical and psychological harm to his victim or victims could result. I am satisfied that in this case the risk of re-offending or recidivism supports visa cancellation.
83. 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.
84. 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.
85. 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”.
86. While deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it should be taken into account, especially in the case of serious gang violence such as has occurred here.
Expectations of the Australian Community
87. 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.
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88. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical, economic and other reasons for that position have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
89. 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).
90. 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 to be imposed on them (at p658).
91. 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)).
92. In Stone, the tribunal stated at N132 - N133:
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The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia.
…
93. In my view the community would expect that the visa of a person with such a serious and sustained criminal record, is assessed at being at risk of re-offending and who shows only modest evidence of rehabilitation should be cancelled.
The Best Interests of the Child
94. 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)).
95. The applicant has no children but has a number of nieces and nephews under the age of 18. The ones he knows best are his adopted sister’s two sons, Stephen aged 12 and another aged 9. The applicant could not remember the name of the younger boy. He said he wanted to get to know them better, but it is plain that there has been very limited contact to date and that he is only in the process of becoming acquainted with them. The nationality of the children was not stated, but presumably they are Australian citizens.
96. It is apparent that there is no close relationship between the applicant and his nieces and nephews and I find that separation from the applicant is unlikely to have any adverse affect on them. Their interests therefore do not weigh significantly against visa cancellation.
Other considerations
97. 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.
98. The applicant has not previously been warned about the possibility of visa cancellation.
99. He has no business or similar ties to the Australian community, is unmarried and is not in a relationship with an Australian citizen or permanent resident.
100. All of the applicant’s family now appear to reside in Australia, including his parents. He was, however, raised from the age of two by his grandmother and an aunt in New Zealand and did not meet his parents until he was aged 12. He did not know he had a father and siblings until he was eight.
101. His grandmother is now deceased and it is not clear whether his aunt is still living and whether she is in New Zealand or Australia.
102. There is no significant evidence of a family support structure in Australia. Only his father and adopted sister submitted letters of support and no member of his family gave oral evidence, although the applicant had asked for arrangements to be made for family members’ evidence to be taken by telephone. He said there had been a change of plans because they were all busy, but given the seriousness of the issues in these proceedings, that may be some indication that the disruption to the family will not be substantial. The evidence, including the letter from his father, shows that the applicant has had little contact with them in recent years.
103. While the applicant does not appear to have any family in New Zealand, he does have childhood friends there and has useful work skills that should assist him to find employment. He spent his formative years in New Zealand and is unlikely to experience any particular hardship in becoming re-established there.
104. There is some evidence of rehabilitation. His conduct in prison has latterly improved and he has gained some benefit from the courses he has completed. His rehabilitation is untested, however, and seems in some respects to be rather superficial and incomplete. As was noted above, he is assessed as being at medium or moderate risk of re-offending.
105. I find that the primary considerations of community protection and expectations outweigh the best interests of the children and the other considerations in this case.
106. The decision under review is affirmed.
I certify that the 106 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: 9 December 2008
Date of Decision: 19 December 2008
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Ms A Linacre, Clayton Utz
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