Fiu and Minister for Immigration and Border Protection (Migration)
[2017] AATA 928
•23 June 2017
Fiu and Minister for Immigration and Border Protection (Migration) [2017] AATA 928 (23 June 2017)
Division:GENERAL DIVISION
File Number: 2017/1944
Re:Iosefa Simanau Fiu
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:23 June 2017
Place:Melbourne
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa.
.....................................[sgd]...................................
Egon Fice, Senior Member
IMMIGRATION - application for revocation of mandatory cancellation of visa - character grounds - where applicant has substantial criminal record - where applicant has a significant convictions for offences of dishonesty and violence - where crimes motivated by methylamphetamine use and expenses - where applicant’s drug use and family matters said to contribute significantly to criminal conduct - where unacceptable risk of applicant engaging in criminal conduct - whether effect of decision on minor children engages certain primary considerations - where Australian community would expect non-revocation - where other considerations weigh slightly in favour of revocation - decision affirmed
Legislation
Migration Act 1958 (Cth) ss. 499, 501, 501CA
Cases
Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504
Secondary Materials
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force in Australia 16 January 1991)
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
23 June 2017
Mr Iosefa Fiu is a New Zealand citizen. He was born on 27 November 1990. He migrated to Australia with his parents on 28 January 1996. He was five years of age. Mr Fiu was granted a Class TY Subclass 444 Special Category (Temporary) Visa. He has not returned to New Zealand since that date.
On 12 March 2013 the then Department of Immigration and Citizenship (the Department) wrote to Mr Fiu stating it had come to the Department’s attention that he had been convicted of a criminal offence. Mr Fiu was told that because of his criminal offending, it may be necessary to consider cancellation of his visa under s. 501 of the Migration Act 1958 (the Migration Act). The letter invited Mr Fiu to provide more information about his personal circumstances and explained that the information provided would be used to determine if formal consideration should or should not be given to cancelling his visa. Mr Fiu said he did not receive that letter.
In a letter dated 1 February 2017 Mr Fiu was informed by the Department that his visa had been cancelled under s. 501(3A) of the Migration Act. The Department informed Mr Fiu that the cancellation was mandatory because he did not pass the character test. He had a substantial criminal record and was serving a full-time sentence of imprisonment in a custodial institution because he had committed an offence or offences against Australian law. That letter also informed Mr Fiu that the decision to cancel his visa may be revoked by the Minister under s. 501CA(4) of the Migration Act. Mr Fiu lodged an application with the Department on 9 February 2017 seeking revocation of the decision to cancel his visa. Along with his application, Mr Fiu supplied a Personal Circumstances Form and a handwritten letter in support of his application.
In a letter dated 29 March 2017 the Department informed Mr Fiu that a delegate of the Minister had decided, under s. 501CA(4) of the Migration Act, not to revoke the original decision. Mr Fiu received that letter on 1 April 2017.
Mr Fiu lodged an application with the Tribunal on 6 April 2017, within the prescribed 9 day period, seeking a review of the decision not to revoke the decision to cancel his visa.
I am required to determine whether, taking in to account all of the matters set out in Direction No. 65 (the Ministerial Direction) made by the Honourable Mr Scott Morrison MP, the then Minister for Immigration and Border protection pursuant to s. 499 of the Migration Act, the preferable decision was to revoke the cancellation decision. Section 499 of the Migration Act relevantly provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A A person or body must comply with the direction under subsection (1).
…
MR FIU’S CRIMINAL OFFENDING
Mr Fiu’s criminal offending commenced when he was about 16 ½ years of age. The following table of offending is taken from the Victoria Police Criminal History Report.
Court Court Date Offence Court Result Shepparton Childrens Court 02 Nov 2007 Armed Robbery
Attempted Armed Robbery
Unlawful Assault (2 Charges)Convicted. Released on a youth attendance order for 12 months. Heidelberg Childrens Court 30 Jan 2009 Breach of Youth Attendance Order
Proven. Melbourne County Court 08 Sep 2009 Recklessly Cause Injury
Robbery
Recklessly Cause Serious Injury
Intentionally Cause Injury
Theft From Shop (Shopsteal) (2 Charges)Reckless Conduct
Endanger Serious Injury
Drive In A Manner Dangerous
Theft
Deal Property Suspected Proceed of Crime
On all Charges: Youth attendance order 9 months. License Disqualified for 6 months. Heidelberg Childrens Court 09 Sep 2009 Robbery Convicted. Released on a Youth Attendance Order for 12 months. Recklessly Cause Injury
Unlawful Assault (3 Charges)
On all charges: Convicted. Released on a Youth Attendance Order for 12 months.
Werribee Childrens Court 13 Nov 2009 Possess Controlled Weapon Without Excuse Convicted. Fined $200.
Broadmeadows Magistrates Court 28 Apr 2011 Drive Whilst Authorisation Suspended (2 Charges) On each charge: Aggregate imprisonment 1 month concurrent. Wholly suspended. Operational period is 12 months. License Disqualified 2 months.
Melbourne Magistrates Court 16 Feb 2012 Drive Whilst Authorisation Suspended Imprisonment 4 months. Suspended for 12 months. License Disqualified for 12 months.
Melbourne County Court 14 Feb 2013 Possess Drug of Dependence (2 Charges) On each charge: Convicted. Fined $150. Armed Robbery (2 Charges) On each charge: imprisonment 42 months. 36 months of each charge concurrent. Armed Robbery Imprisonment 42 months. 33 months concurrent. Armed Robbery Imprisonment 4 years. Armed Robbery (2 Charges) Imprisonment 3 years concurrent. Pay total compensation $360. Intentionally Damage Property Imprisonment 12 months. 10 months concurrent. Intentionally Damage Property Imprisonment 9 months concurrent. Intentionally Damage Property Imprisonment 6 months. 5 months concurrent. Drive Whilst Disqualified (5 Charges) Aggregate imprisonment 6 months. 4 months concurrent. Intentionally Damage Property Imprisonment 2 months concurrent. Total imprisonment 6 years 2 months.
Melbourne Magistrates Court 30 Mar 2015 Affray (Common Law)
Recklessly Cause Injury
Common Law Assault
Aggregate 19 months imprisonment concurrent. Melbourne County Court 04 Jun 2015 Appeal re: 30 Mar 2015
Affray (Common Law)
Recklessly Cause Injury
Common Law Assault
Appeal allowed, order of Magistrates Court set aside (Aggregate 19 months imprisonment), sentence of 7 months concurrent with sentence now serving.
As is evidenced by the Criminal History Report, Mr Fiu’s offending commenced before he reached 17 years of age and resulted in convictions in the Shepparton’s Children’s Court in 2007. Those offences were of a serious nature. They included armed robbery, attempted armed robbery and unlawful assault. A Youth Attendance Order was imposed.
Those offences were revisited just over 12 months later, with convictions recorded in the Heidelberg Children’s Court in January 2009 for breach of the Youth Attendance Order relating to 2007 convictions. This resulted in Mr Fiu being detained in a Youth Justice Centre for a period of 11 months.
In September 2009 Mr Fiu was convicted in the County Court of further serious criminal conduct including recklessly cause injury, recklessly cause serious injury and intentionally causing injury. He was also convicted of driving in a dangerous manner. He was sentenced to a Youth Attendance Order for nine months and his driver’s licence was suspended for six months. In November 2009 Mr Fiu was convicted in the Werribee Children’s Court for providing a false name; possessing a controlled weapon without excuse; recklessly causing injury; unlawful assault; and recklessly causing serious injury. He was sentenced to a Youth Attendance Order for a period of 12 months as well is being fined for a number of the less serious offences.
Mr Fiu was then convicted in April 2011 and February 2012 of driving offences, one of which attracted a sentence of one month imprisonment, wholly suspended. His driver’s licence was suspended for four months.
Then, in February 2013, Mr Fiu was convicted of six counts of armed robbery, intentionally damaging property and possessing a drug of dependence. The total sentence for these offences was 281 months, or just over 23 years. Taking into account concurrent sentences and the period Mr Fiu had already served while on remand, the total effective sentence received by Mr Fiu was 6 years and 2 months.
In delivering his sentencing remarks, Judge Murphy described the armed robberies in some detail. It is significant to take into account the nature of this offending particularly because of the effect it must have had on those innocent persons who were unfortunate enough to be at the venues which were robbed. His honour described the following:
… There was a locked door there; you forced your way into the premises using a metal pole to smash a glass panel, moved into the gaming room, threatened patrons and staff. The unknown fourth offender was armed with a metal pole. You Iosefa Fiu were armed with a machete.
Demands were made on the Tavern manager and you Iosefa Fiu at that time told staff that this was what you were going to do and swung the machete across the bar and smashed some glasses and bottles, frightening the patrons and staff.…
While staff and patrons were terrified during the commission of the crime, no one was physically injured and a total of $6045 was stolen.
Later that same day at approximately 8.10 pm a man entered the sport (sic) bar at the Brook on Synedes Hotel located in Point Cook, raised suspicions of the staff and that person was later identified as you Iosefa Fiu. You made no attempt to use any of the machines and were seen to make a phone call. At that point the three co-accused came in and you fell to your feet and then left.
The three offenders entered the sports bar; you Mr Pale Fiu were wearing some of the same clothing and you had a black-coloured baseball bat. Mr Kolio, you were also wearing some of the same clothing as you wore earlier and on this occasion you are armed with a black handgun.
Having entered the bar you told patrons and the employees to lie on the floor. You then approach the cashier with a canvas bag demanding money; pointed the handgun at the counter staff and demanded they put money into the bag. You Mr Pale Fiu threatened to hit people with the baseball bat.
During the filling of the bag you Mr Pale Fiu walked around the bars threatening people and smashed some glass display units, and two computers. You then took the bag, left the hotel through the car park that you Mr Iosefa Fiu were waiting. No one was injured and a total of $2100 was stolen.
About an hour later the four of you entered the St Albans Sports Club in St Albans. You Mr Pale Fiu were wearing the same clothing, still armed with a black baseball bat. Mr Kolio you were wearing the same clothing and armed with a handgun. Mr Iosefa Fiu, you were in different clothing and you were armed with an axe. The fourth male was armed with a red baseball bat.
There were a large number of patrons in that venue and you used the axe to smash a glass partition in the smokers’ area; some of the patrons were sprayed with shattered glass.
You Mr Kolio approached the cashier and pointed your handgun at both the female staff and patrons in a threatening way; placed the canvas bag on the cashier’s desk; pointed the handgun at the cashier and demanded she fill the bag. While this was happening the two of you smashed four poker machines and a glass advertising screen. Demands were made that the staff hurry up. The security staff complied with demand and at one stage you Mr Pale Fiu struck one of the staff twice with your baseball that causing bruising.
As you were leaving the scene you Mr Kolio were seen pointing a handgun at staff and yelling at them not to look up. A total of about $5000 was stolen and $30,000 damage to the venue was incurred.
About three weeks later on 2 August, the three of you again entered the Westmeadows Tavern at about 10.15 pm by smashing a glass panel. Having entered the gaming room you threatened the staff and patrons; told them to lie on the ground and the event was a similar modus operandi to your earlier entry there on 16 July.
You Mr Kolio were again armed with a black handgun and carrying the same bag. Mr Pale Fiu, you were armed with a black handled baseball bat and you Mr Iosefa Fiu were armed with an axe that you had used in the previous St Albans’ robbery.
You Mr Kolio again approached the cashier and pointed a handgun at her. While this was happening the two of you, Iosefa and Pale Fiu, used your weapons to smash four poker machines causing approximately $20,000 damage.
During the commission of this offence you Mr Iosefa Fiu took a wallet and a purse from two patrons who were lying on the floor. One of the patrons had $200 cash in that wallet and the other one handed over her purse containing about $160 cash. …
Judge Murphy accepted that Mr Fiu was addicted to methylamphetamine (colloquially known as ‘ice’) and that his addiction to that drug explained his criminal offending but did not accept that it reduced his or the other offenders’ culpability. His Honour said:
On the plea, Mr Swanwick, who appeared for both of you, Iosefa and Pale Fiu, indicated that the unknown fourth offender who had participated in the first three armed robberies was in fact your drug dealer, to whom you also owed money. He put on behalf of each of you, to reduce your moral culpability, that each of you were addicted to Ice and that this provided the explanation for your conduct in participating in the armed robberies. I do not accept that that does reduce the moral culpability of either of you. While drug addiction may go to explain your conduct, I do not accept on the material before me that it goes to reduce your moral culpability for the offending.
Judge Murphy added that both Iosefa and Pale Fiu must accept full responsibility for their actions which were planned events to obtain money. His Honour also said that the fact that both were drug-addicted at the time of committing the offences, was relevant to their prospects of rehabilitation.
When examining Mr Fiu’s prior convictions, his Honour noted that at the time Mr Fiu committed the armed robberies, he was under a suspended sentence imposed by the Melbourne Magistrates’ Court for driving offences. He also referred to Mr Fiu’s convictions for armed robbery, attempted armed robbery and unlawful assault in the Children’s Court when he was about 17 years of age. Judge Murphy then referred to the additional offences dealt with subsequently which included robbery, recklessly causing injury, intentionally causing injury, reckless conduct endangering serious injury, two counts of theft from a shop, theft, and dealing with the proceeds of crime, as well as recklessly causing injury and driving in a dangerous manner. Judge Murphy pointed out that these events were said to have arisen in the course of a fight at a hotel. That suggests the possible involvement of alcohol in addition to illicit drugs.
In summing up, his Honour said:
Overall, your prior convictions are significant for a man of your age. Significantly, you have two prior convictions, albeit in the Children’s Court, for robbery, one for armed robbery, as well is convictions for other offences of violence and dishonesty. In addition to that, you have a number of traffic-related convictions.
Further, you have been sentenced within the Children’s Court System to two youth attendance orders. Within the adult system your offending has been driving related, and you have been sentenced to two sentences of imprisonment that were suspended. Significantly, the sanctions imposed have escalated, indicating that you have not responded to earlier more lenient dispositions. For sentencing purposes in relation to the summary offences, you have four prior convictions for driving whilst disqualified, two for driving an unregistered vehicle, and one for stating a false name.
Overall, whilst you have an unedifying prior driving record, and some serious criminal convictions, the last appearance for an offence against a person was nearly three years before this offending. This indicates that, prior to these events, you were not descending into a life of crime, and this is relevant to your prospects of rehabilitation. I thus regard your prior convictions of limited relevance only to the principal offences here.
Mr Fiu was also subsequently convicted in the Melbourne Magistrates’ Court in April 2013 on charges of burglary, theft of a trailer and driving while his licence was suspended. For those offences he was sent to 12 months imprisonment on the first two offences and three months on the third offence, all of which were to be served concurrently.
There has been one further significant event which took place while Mr Fiu was incarcerated at the Fulham Correctional Centre. The report of this incident indicated that in June 2015, Iosefa and Pale Fiu went to see the general manager of that facility in relation to a personal grievance. Mr Fiu explained the basis of that grievance in his witness statement and oral evidence.
In his oral evidence Mr Fiu said that he and his brother wanted to attend the funeral of their grandmother but that had been refused. In fact Mr Fiu said that what incensed him was that he was told he was “not of aboriginal descent” and that the “relation was not close enough”, therefore they were not permitted to attend the funeral. Apparently a crowd of prisoners gathered at some point during those discussions and Mr Fiu punched one of the prison officers which resulted in a melee involving the other prisoners and prison officers. An ambulance was called and four prison officers were taken to Sale hospital for treatment of minor to moderate injuries.
Mr Fiu was charged and convicted for his involvement in that assault. In his written statement of evidence he said that his term of imprisonment was increased by further 12 months.
Mr Fiu did not dispute that he had a substantial criminal record as that expression is defined in s. 501(7) of the Migration Act. Plainly he is a person who has been sentenced to a term of imprisonment of 12 months or more (s. 501(7)(c)). Therefore, s. 501(3A) applies to Mr Fiu. It provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7) (h), (b) or (c); or
(ii) …
(b)The person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory.
A person whose Visa has been cancelled may apply to have that decision revoked. Section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The only issue before me is whether the decision not to revoke the cancellation of Mr Fiu’s visa was the preferable decision. That requires me to apply the Ministerial Direction in coming to my conclusion.
MINISTERIAL DIRECTION NO. 65
Paragraph 6.1 of the Ministerial Direction sets out the objectives of the Migration Act. Relevantly, it provides:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) …
(3)
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancel under section
501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The overarching principles which must be applied when determining whether or not the visa cancellation should be revoked are set out in paragraph 6.3 of the Ministerial Direction. Relevant to Mr Fiu’s case are the following:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
Section 2 of the Ministerial Direction explains that the exercise of discretion should be informed by the principles in paragraph 6.3. In Mr Fiu’s case, I must take into account the considerations in Part C in order to determine whether the mandatory cancellation of his visa should be revoked. Furthermore, paragraph 8 provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of the visa holder, or revoke a mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Ministerial Direction describes the primary considerations in the following way:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Protection of the Australian community
When considering the protection of the Australian community, I am required to give consideration to the following:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1 (2)).
The nature and seriousness of the conduct
In addition to the matters set out at paragraph 6.3 of the Ministerial Direction, paragraph 13.1.1 (1) provides the following guidance:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)…
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of the duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
…
In his sentencing remarks, Judge Murphy said:
Armed robbery is an inherently serious offence, as it is an offence of violence as well as against property. It carries a 25-year maximum gaol sentence, which indicates the seriousness put on it by the Legislature. Each of the individual armed robberies here were in themselves serious, and as a course of conduct also serious. The features that go to their seriousness were that they were undertaken in company, with the four of you involved in the incidents on 16 July 2012, and then only the three of you who are in the dock, in the incident of 2 August 2012. …
There can be no doubt that the offence of armed robbery is extremely serious. As Judge Murphy said in his sentencing remarks: gaming venues are entitled to protection of the law from those who would seek to target their cash reserves. Innocent patrons and employees are entitled to go about their daily lives without having weapon wielding bandits holding them up and inflicting mindless damage on the facilities.
The fact that Mr Fiu may have been affected by drugs at the time of offending does not decrease his moral culpability. In addition to simply taking monies from each of the venues targeted, in one incident, Mr Fiu threatened two patrons lying on the floor and stole from them a wallet and a purse containing money. While there were no victim statements before the sentencing judge, there was no dispute that the events would have been traumatic to those involved. It is reasonable to infer that many of those persons who were present at the time the robberies took place will have some long-lasting psychological effects as a result of the trauma experienced.
The sentence imposed by the court indicates the seriousness of the offending. The effective sentence in respect of the armed robberies was six years and two months. However, for the purposes of the Ministerial Direction, as is described in Annex A, Section 2, which deals with the application of the character test, where a person has been sentenced to two or more terms of imprisonment to be served concurrently, whether in whole or in part, the whole of each term is to be counted in working out the total of the terms. In Mr Fiu’s case, that total amounts to something over 23 year’s imprisonment. In addition, it should be borne in mind that Judge Murphy made significant allowances for Mr Fiu’s full confessional statement upon arrest, and the early plea of guilty, allowing full credit for those pleas. He also accepted that Mr Fiu expressed remorse and he clearly took that into consideration as well.
Judge Murphy also took into account Mr Fiu’s prior convictions and personal circumstances. In his sentencing remarks, Judge Murphy referred to Mr Fiu indicating his father would drink alcohol to excess, was controlling and demanding and he felt significant pressure to live up to his expectations in sport. On the hearing of this matter, Mr Fiu’s father, Mr Simanua Fiu, gave oral evidence that his son played football at a very high standard and he had expectations of him to reach professional status.
Mr Simanua Fiu also testified that he would physically punish his son for wrongdoing and that he did neglect his children due to drinking alcohol to excess, particularly on weekends. In fact, Mr Simanua Fiu moved with his family to Mildura while Mr Fiu remained in Shepparton, residing with his grandmother. When he was about 16 years of age, he was informed that his mother had been diagnosed with ovarian cancer. He then moved to Mildura to be with his family. In his oral evidence, Mr Simanua Fiu admitted that there was violence at home including between himself and his wife at that time. He described physically disciplining Mr Fiu. Mr Fiu said he was introduced to drugs after moving to Mildura, first using cannabis and then using methylamphetamine approximately 18 months later.
In his sentencing remarks, Judge Murphy said that Mr Fiu had told Dr Cunningham, a psychologist, that he commenced using cannabis at the age of 17 following the death of his mother and then after her death, he also started to use methylamphetamine. As for Mr Fiu’s prior offending, Judge Murphy pointed out that overall, Mr Fiu’s prior convictions were significant for a man of his age. He also noted that the sanctions imposed from his first conviction had escalated indicating he had not responded to more lenient sanctions. However his Honour also noted that there was a three-year period between his commencing offending and the serious armed robbery charges he faced at that time which, in his opinion, indicated he was not descending into a life of crime. He therefore regarded those earlier convictions as being of only limited relevance to the principal offences he faced in the County Court. Judge Murphy also took into account that Mr Fiu had not responded to previous sanctions and was therefore required to serve a longer period before becoming eligible for parole.
Despite what Judge Murphy said in his sentencing remarks, it must be said that the seriousness of Mr Fiu’s offending increased with the passage of time. Mr Fiu put that down to the fact that while he was working full time as a tree lopper between 2008 and 2011, he was able to avoid being involved in violent criminal behaviour as he had been able to balance and sustain his drug habit. However once the work began to slow down, pressured by the need to obtain more money for his drug habit and to pay off drug related debts, he resorted to violence of a very serious nature.
Given the above evidence regarding Mr Fiu’s criminal offending, I find that the nature of offending, and particularly the effect it must have had on innocent victims, was very serious. Mr Fiu, in concert with his co-offenders, offered violence to innocent persons and caused serious damage to property. The reasons claimed by Mr Fiu for his offending do not lessen its seriousness.
Risk to the Australian community should Mr Fiu reoffend
Paragraph 13.1.2 of the Ministerial Direction deals with this consideration. It provides:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
It is plain on the evidence set out above that, should Mr Fiu relapse and fall into his past criminal behaviour, the risk of serious harm to individuals and property is significant. Given Mr Fiu’s propensity to act violently, evidenced by charges of assault, and if the need once again arose to fund a drug habit, the consequences visited upon victims are likely to be of the most serious nature. I find that the Australian community’s tolerance for the risk of future harm should Mr Fiu reoffend would be extremely low and, most likely, unacceptable.
The issue on this consideration therefore simply comes down to the likelihood of Mr Fiu engaging in further criminal or other serious conduct. Mr Fiu put his criminal offending down to disrupted adolescence, lack of stability and parental attachment and supervision. In his statement of evidence Mr Fiu said that he started using drugs because he did not know how to deal with the emotions he was feeling after finding out that his mother had cancer. He blamed the drugs on his violence as well as the theft and damage to property.
In his sentencing remarks, Judge Murphy referred to Dr Cunningham’s report indicating he would benefit from drug and alcohol counselling and also grief and loss treatment following the loss of his mother. He referred to Mr Fiu having engaged with his drug problems in the sense of being assessed by Mr Anthony Dieni, an experienced drug and alcohol counsellor from St Paul’s Drug Prevention program.
Judge Murphy commented that those views reduced his risk of re-offending. He also mentioned the fact that Mr Fiu had a significant work ethic in that he was able to establish a business for a period of nearly two years, indicating he would have an ability to read-integrate into the workforce. With respect to his Honour, the evidence before me indicated that the business was run by Mr Fiu’s uncle and he was an employee. Nevertheless, I had in evidence a letter from a business trading as Lumperjack Tree Service indicating that Mr Fiu had previously worked for that business and was one of its best workers. The manager and Mr Fiu’s uncle, Mr Timoteo, indicated he would have him back to work for the business if he were to remain in Australia. Overall, Judge Murphy assessed his prospects of rehabilitation as reasonable.
Mr Watson-Munro, who describes himself as a Consultant Forensic Psychologist, examined Mr Fiu on 8 May 2017 and provided a report dated 18 May 2017 which was taken into evidence. Mr Watson-Munro said that at the time of Mr Fiu’s offending, Mr Fiu was suffering from a range of psychological problems which had been undiagnosed and untreated. He said Mr Fiu was greatly affected by the death of his mother. Although Mr Fiu was able to secure employment working as a tree lopper on an intermittent basis, his capacity to work was greatly affected by his escalating drug problems. According to Mr Watson-Munro, Mr Fiu has now detoxed from drugs and is thinking more clearly. He said this was corroborated through discussions with his partner, Ms Elviye Dauti, and his step-mother. Mr Watson-Munro was also the view that Mr Fiu had developed insight into the effects of his behaviour on victims of his offending.
When asked, in the course of his oral evidence, what he considered to be the risk of Mr Fiu re-offending, Mr Watson-Munro explained he did not administer any psychometric tests to Mr Fiu because he considered the outcome would be skewed as a result of Mr Fiu’s psychological problems as well as the family violence issues and his drug taking. Mr Watson-Munro conceded that Mr Fiu’s risk of re-offending was high if he used drugs. However, taking into account Mr Fiu’s current level of support from family; his abstinence from drug use for a period of about five years which he considered significant; and his high motivation, Mr Watson-Munro was of the opinion that Mr Fiu would be okay. He concluded:
With the additional support of his family, coupled to the structure which gainful employment will provide, I believe that with continuing supervision and therapy, his prognosis will continue on a positive trajectory.
Mr Fiu said that his drug habit, acquired at an early age, was the primary cause of his offending. His evidence was that after he was arrested, he ceased using drugs. Except for one positive urine test in October 2014, the assay results of urine samples taken while he was imprisoned were all negative. That statement is supported by the documentary evidence which I had before me. Mr Fiu claimed that the single positive test resulted from him being exposed to side-stream cannabis smoke from another inmate who was using that drug. That statement was not verified by the evidence save for Mr Fiu’s statement. In his oral evidence Mr Fiu also pointed out that drugs were readily available in prison as they performed the role of currency in order to obtain advantages. Despite the easy access to drugs, he had abstained totally.
Ms Dauti provided a witness statement dated 9 February 2017 and attended the hearing at which she also gave oral evidence. She described herself as Mr Fiu’s partner of some seven years standing. Ms Dauti’s claim of support is evidenced by the Call Activity Reports from Barwon Prison which indicate almost daily contact with Mr Fiu. Clearly, at the time she commenced her relationship with Mr Fiu, he was already addicted to serious drugs. She stated that on his imprisonment, she had presented Mr Fiu with an ultimatum, indicating that she would leave him if he did not reform himself and cease taking drugs. However, given the drug and alcohol course Mr Fiu completed in prison, she was of the view that his attitude had changed for the better.
Mr Fiu described completing a number of programs while in prison, including the Release Related Harm Reduction program; Exploring Change program; and part 1 of the Drug and Alcohol Program. He was currently completing the High Intensity Violence program. He said he was also waiting to start part two of the Drug and Alcohol program. Mr Fiu explained those programs were not compulsory and that there were long waiting lists to get into them. He said he chose to do the programs because he wanted to use his time in prison to turn around his life. Mr Fiu indicated several times his desire to continue to be involved in programs, including potentially seeing a counsellor, if he was released into the community.
Mr Fiu also said in evidence that he had cut ties with his friends outside prison who were still using drugs. He had no intention of rekindling those friendships once released. Mr Fiu also said he had re-established his relationship with his father, who had also changed. His father, Mr Simanua Fiu, gave oral evidence at the hearing which included an acceptance of his previous excessive consumption of alcohol and sometimes violent conduct. He acknowledged that this conduct was wrong and may have affected Mr Fiu. He also explained that he had turned his life around now being actively involved in social activities involving his grandchildren.
Mr Fiu also mentioned that he had been appointed in prison to carry out Billet Duties which involved cleaning duties in the kitchen and dining areas. It also involved performing other duties as directed by unit staff.
It was also clear at the hearing that Mr Fiu has significant support from his extended family, numbering about 70 persons all told. A large number of those attended the hearing. I also had in evidence a record of prisoner visits between January 2016 and February 2017. They indicate essentially weekly visits which Mr Fiu said were from family.
The problem with the claimed family support is that it was available to Mr Fiu prior to him commencing his criminal offending. In fact, Mr Fiu explained that he lived with relatives (an auntie) in early 2007 and the police had contacted relatives when searching for Mr Fiu following his early offending in 2007. Family support was clearly available but it made no difference to his offending. Although I accept that his family has now expressed considerable support for Mr Fiu, that support appears only to have established itself when Mr Fiu was threatened with cancellation of his visa. I accept that his father, now supported by a new partner, understands the negative impact his prior behaviour had on his son. I also accept that his relationship with his son has been significantly repaired.
Of considerable concern is the final conviction which resulted from an assault perpetrated by Mr Fiu and his brother on prison officers while they were incarcerated at Fulham Correctional Centre. That assault took place on 12 June 2013 when he and his brother were refused permission to attend their grandmother’s funeral. It appears Mr Fiu may have been aware at about that time that the Department of Immigration and Citizenship was examining whether or not to cancel his visa. A letter was sent by Registered Mail to the Metropolitan Remand Centre on or about 12 March 2013 warning him of that possibility.
The Comprehensive Prison History which was in evidence discloses that on 12 March 2013 Mr Fiu was transferred to Port Philip and on 14 March 2014 to Fulham where he remained until 28 March 2013 when he was returned to Port Philip. Although Mr Fiu claimed he had never received the warning, it is not apparent to me why that letter, sent by Registered Mail which enabled it to be tracked, would not have followed him on his transfer. Even if I were to accept that Mr Fiu had not received the letter, it seems inconceivable that he would not have been aware that his criminal behaviour, particularly the six armed robberies carried out in July 2012, would attract the attention of the then Department of Immigration and Citizenship. The subsequent assault on the prison officers, despite Mr Fiu’s statements about denial of permission to attend his grandmother’s funeral on the basis of race, are evidence of the lack of restraint and a propensity to resort to violence when frustrated.
When Mr Watson-Munro was questioned about this in the course of his oral evidence, he said that behaviour and judgement can remain affected up to 5 years after ceasing to take methylamphetamine. At the time of the assault on the prison officers, Mr Fiu had been off drugs for about 10 months. Mr Watson-Munro explained that the effects of methylamphetamine on the brain would not have fully resolved by this point, and in particular opined that the part of the brain responsible for exercising judgment decisions would still have been impaired. Notwithstanding this explanation, the incident raises some concern about the possibility that Mr Fiu is prone to violence when frustrated.
The evidence I have referred to above plainly indicates that should Mr Fiu again resort to violence for whatever reason in the future, the harm which he may cause by his violence would be serious. He is a large strong man and capable of inflicting serious injury even without weapons.
As for the likelihood that he will engage in further criminal or serious conduct, much will depend upon Mr Fiu’s ability to remain drug-free. The risk that he will again revert to drug use remains despite the support Mr Fiu indicates he has from his partner and extended family. He lapsed into serious drug use despite having that support. I find that the risk that Mr Fiu will resume drug taking remains real and is probably at a moderate level.
Best interests of minor children in Australia affected by the decision
This consideration applies only if a child is, or would be, under 18 years of age at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made. Mr Fiu has two brothers who are under 18 years of age.
Although not stated in the Ministerial Direction, history indicates that this consideration is intended, at least in part, to implement Australia’s international obligations under the Convention on the Rights of the Child opened for signature, ratification and accession by the General Assembly of the United Nations resolution of 20 November 1989. It entered into force in Australia on 16 January 1991 (see Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 at 524, per Perry J). The Preamble to the Convention states:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,…
The focus of the Convention is upon the protection of children, taking into account the rights and duties of parents and others in that capacity. The following are examples:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status (Article 2, Paragraph 1).
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures (Article 3, Paragraph 2).
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention (Article 5).
Those elements contained in the Articles I have referred to above form the basis for the considerations set out at paragraph 13.2(4) of the Ministerial Direction. Essentially, importance is placed upon those persons in a parental or guardianship role, irrespective of whether they are the biological parents of the child. The factors relevant to Mr Fiu’s case which must be considered are as follows:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts the contact);
(a)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(b)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(c)…
(d)Whether there are other persons who already fulfil a parental role in relation to the child;
(e)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
The first point to note about Mr Fiu’s relationship with the children involved is that they are his younger brothers, aged 16 and 14 years. He is not in a parental role. Nor is it intended that he take up a parental role. The boys live with their father and stepmother who, as I understand it, perform the parental role. They have not abrogated their legal responsibility for those children. Mr Fiu has no legal responsibility for those children. As I understood his evidence, he is expected to play the dominant role model for his younger brothers. While that may well be the case, that is not the same as adopting a parental or guardianship role.
In the reasons of the delegate of the Minister for refusing revocation of Mr Fiu’s visa cancellation, reference was made to Article 3 of the Convention. The delegate accordingly treated this as a situation enlivening the Primary Consideration and considered the factors set out under paragraph 13.2 of the Ministerial Direction. With respect to the delegate, I do not agree. As I have set out above, Article 3 deals with the rights and duties of parents, legal guardians, or other individuals legally responsible for the child. Mr Fiu does not fit within the category of persons to which Article 3 applies.
In any event, given that his younger brothers are undoubtedly aware of Mr Fiu’s criminal offending including violence, armed robbery, and serious drug abuse, even if Mr Fiu were to remain drug-free, there must be some doubt as to whether he would provide a positive quasi parental role in the future. In any event, the eldest child is now very soon to reach the age of 18 years and the youngest is probably within about three years of reaching that age. It is unlikely that those relatively short periods of time will have any meaningful effect on the children even if they were positive.
I had in evidence a written statement from each of those children. While, as one would expect, they are very supportive of Mr Fiu remaining in Australia and that they would miss his presence, those statements are made in the context of having somebody to kick a football with or to go to movies. There is no suggestion whatsoever that Mr Fiu could contribute meaningfully to their education or social development, which seem to be more relevant considerations.
In my opinion, the non-parental relationship of Mr Fiu to his two younger brothers combined with the fact that it is not intended that he take up a parental or guardianship role given that the children have a father and stepmother, require Mr Fiu’s relationship with his younger brothers to be properly assessed under the Other Considerations heading dealing with the strength, nature and duration of ties to Australia. However, even if I am wrong about that, I find that it is unlikely that Mr Fiu can or will contribute significantly to the boys development in a meaningful way. That is because they will be acutely aware of his past criminal conduct and, in any event, within a very short space of time, will no longer be under legal parental control. There was no evidence from either of the boys of Mr Fiu contributing to their educational or social development.
Expectations of the Australian community
Paragraph 13.3 of the Ministerial Direction deals with this consideration. It provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
I have no doubt that the Australian community would expect protection from the type of criminal conduct in which Mr Fiu engaged. The serious violence perpetrated by Mr Fiu on innocent victims in almost all of his criminal offending, including that when he was under 18 years of age, would plainly be unacceptable to the Australian community and I have no doubt whatsoever that is the view of the Australian government. No citizen should fear assault and robbery when going about their ordinary business or recreation. I find the tolerance of the Australian community to this kind of conduct is extremely low.
Nevertheless, the Australian community may afford a higher level of tolerance to criminal conduct where the person has lived in the Australian community from a very young age. Mr Fiu was five years old when he first came to Australia. However, of concern to me is the fact that Mr Fiu had ample warning after his convictions in November 2007 that his conduct would simply not be tolerated. He received a youth attendance order on each count rather than incarceration. He failed to comply with the youth attendance orders on several occasions. Plainly, the lenient sentence did nothing to act as a warning to Mr Fiu that his conduct would not be tolerated.
I have taken into account the fact that on his first Court appearance, the Court included a special condition requiring Mr Fiu to be provided with grief counselling in the event of his mother’s death, which was then imminent. Mr Fiu claimed he had never been given that counselling. There was no evidence regarding whether Mr Fiu in fact sought that counselling or insisted that it should be provided. I had no evidence regarding the effect such counselling might have had on Mr Fiu.
Furthermore, Mr Fiu’s repeated driving offences while suspended are indicative of a total disregard for other users of the road and the law. In Mr Fiu’s circumstances, I find that little weight can be placed on the fact that he has lived in the Australian community since five years of age.
OTHER CONSIDERATIONS
Paragraph 14(1) of the Ministerial Direction sets out considerations which must be taken into account if they are relevant. Those relevant in Mr Fiu’s case are:
(a)…
(b)Strength, nature and duration of ties;
(c)…
(d)Impact on victims;
(e)Extent of impediments if removed.
Strength, nature and duration of ties to Australia
The matters to which I must have regard are set out in paragraph 14.2 of the Ministerial Direction. It provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-Citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Fiu did arrive in Australia as a young child. Therefore, I accept it can be properly said that his formative years were spent in Australia. While he did not begin offending soon after arriving in Australia, he did commence offending shortly before leaving school at the start of 2007. His first offending occurred at the end of 2006 after he had moved to Mildura from Shepparton when his mother was diagnosed with cancer. At that time he was using cannabis but not methylamphetamine. That is despite the fact that in his witness statement Mr Fiu said that he used methylamphetamine and other drugs since he was about 16 years old. That statement appears to contradict his later statements. Although Mr Fiu does not appear to have been convicted of any drug offence prior to February 2013, he clearly engaged in criminal activity simply by possessing and using illicit drugs. That appears to have started in 2006.
Despite his use of illicit drugs, Mr Fiu did commence work as a tree-lopper in 2008. The evidence indicates he worked for something in excess of three years, not necessarily continuously, in that occupation. Therefore it can be said that Mr Fiu made a small positive contribution to Australia during that time. However since his arrest in 2012, he has been incarcerated and therefore made no contribution. This evidence leads me to find that although Mr Fiu arrived in Australia as a young child, his offending began while a teenager and in fact still at school. His contribution to the Australian community can only be described as minimal.
Mr Fiu’s family, including his extended family all reside in Australia and are, according to Mr Fiu, Australian citizens. I have no reason to doubt that statement. It was also clear to me that Mr Fiu has extensive support from his extended family for the predicament he now finds himself. The telephone call activity records from Barwon prison and the record of prisoner visits also support his claim to have family member support. Mr Fiu also has been promised future support by way of employment as a tree-lopper and also as an apprenticeship in bricklaying, which his family have arranged for him in the event that he is allowed to return to the community.
I also had in evidence support from a number of extended family members indicating that the family were strongly involved as members of The Church of Jesus Christ of Latter-Day Saints. His paternal aunt, Ms Joyce Faamoe, also pointed out that Polynesian people regarded the family unit with the utmost importance and that they strive to live in accordance with their religious and cultural teachings. She, and other members of the family, believed that Mr Fiu would be assisted in his rehabilitation through the support of family and church. In addition, Mr Fiu’s mother and grandmother are buried at Keilor Cemetery. If removed to New Zealand, Mr Fiu would not be able to visit those gravesites in the future. Mr Fiu said that was of some significance to him.
I find there is clear evidence that Mr Fiu has strong family and social links with persons who are Australian citizens, most of whom are family or extended family. Family and extended family would experience serious disappointment were Mr Fiu returned to New Zealand. I did not have evidence that any of those persons would suffer any economic burden if that were to occur. Ms Dauti testified that if Mr Fiu was returned to New Zealand, she would most likely follow him. She also said she was in full-time employment in Australia and believed she would be able to find employment in New Zealand but was not certain about that. Mr Fiu’s father gave evidence that he would try and visit Mr Fiu in New Zealand, but that he probably would struggle to visit him frequently or bring other family members to visit Mr Fiu due to his work arrangements and the cost of visits.
Impact on victims
Paragraph 14.4(1) of the Direction sets out the Other Consideration of the Impact on Victims:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
While I did not have any evidence from victims of Mr Fiu’s offending, given the description of the offending provided by Judge Murphy in his sentencing remarks, there can be no doubt than a number of those victims would have suffered severe psychological trauma. That is particularly so given that Mr Fiu and his accomplices, in the course of the armed robberies, carried serious weapons, including a pistol, for the very purpose of terrorising their intended victims. The fact that the pistol was an imitation, is immaterial. A victim confronted with the pistol pointed at them is not about to even attempt to determine whether that weapon is real or an imitation. They would plainly be terrorised.
The weapons carried were also used to smash bottles, glass and computers, no doubt for the purpose of instilling fear into the victims that if they did not comply, they would suffer physical harm. This barbaric behaviour was repeated several times. Quite plainly, Mr Fiu and his accomplices did not for one moment stop to consider the effect that might have on those innocent victims. While I consider it unlikely that Mr Fiu’s victims would be targeted by him in future re-offending, I find that the victims of Mr Fiu’s offending would be seriously concerned by a decision to revoke the cancellation his visa.
Extent of impediments if removed
Paragraph 14.5 provides a non-exhaustive list of matters which may be taken into account. It provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-Citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Mr Fiu testified that he did not have any family members in New Zealand and on his return to that country would have no support networks. He would not have a job and would have to find somewhere to live. Having been in prison since 2012 also meant that he would probably have some difficulty in gaining employment. Mr Fiu was also concerned that he would have no money on arrival in New Zealand which would create additional difficulties. Mr Fiu also expressed concern about the fact that his partner, Ms Dauti, if she were to accompany him to New Zealand, would also be without employment and without support of her family.
However, although I had no direct evidence of the Social Security or health system in New Zealand, I would expect that to be comparable to the services provided in Australia. In other words, I see no reason why Mr Fiu and Ms Dauti would not be entitled to receive Social Security payments and receive healthcare under the public system in New Zealand. I had no evidence which would suggest that Mr Fiu would not be entitled to exactly the same benefits available to other citizens in New Zealand. The position would be no different to that were they to remain in Australia except for the fact that Ms Dauti has employment and therefore a source of income in Australia. If both families were truly supportive of Mr Fiu, including if he were returned to New Zealand, there is nothing to prevent them from providing financial support, assuming they have the means to do so.
I did not have any evidence before me indicating that Mr Fiu had any health problems which could not be addressed in New Zealand and there were certainly no language or cultural barriers posed should he be returned.
Mr Fiu has obtained some work skills as a tree-lopper and those skills may assist him to obtain employment in New Zealand. Furthermore, Mr Fiu had attained a reasonable level of education in Australia, commencing but not completing Year 11, and that should also assist in obtaining alternative employment or even, perhaps, to engage in further vocational training for the purpose of obtaining new skills. Although he has served a considerable criminal sentence, he is still young, and if he is serious about his commitment to remain off of drugs he should be able to overcome some of the barriers that his criminal past may otherwise hinder his prospects of employment.
I find that other than the emotional attachment to his very large and extended family in Australia, establishing himself and his partner in New Zealand will not be significantly more difficult than it would be upon his release from prison in Australia.
WEIGHING UP THE RELEVANT FACTORS
Examining first the Primary Considerations, I have found that the nature of Mr Fiu’s offending, particularly having regard to the effect it had on innocent victims, was particularly serious. The fact that Mr Fiu said he was under the influence of drugs at the time of his offending does not affect his moral culpability. It merely explains his conduct. As for the risk to the Australian community, I have expressed concern that should Mr Fiu again resort to violence for whatever reason in the future, the harm he might cause is likely to be very serious. It raises the issue that the harm Mr Fiu could inflict, if his conduct were repeated, is so serious that any risk of that harm re-occurring would be unacceptable. I have also found that the risk that Mr Fiu will resort to taking illicit drugs again in the future remains real and the risk level moderate.
Considerations regarding the best interests of minor children in Australia were raised by Mr Fiu in respect of two of his younger brothers, aged 16 and 14 years. However Mr Fiu’s relationship with his younger brothers is plainly non-parental and it appears to me that the factors to be considered under this heading are intended to apply to those persons who are or may become legally responsible for particular children. That is not the case in this matter. Mr Fiu’s two younger brothers are under the parental care of their father and stepmother. They live with their parents. Although Mr Fiu explained that under Polynesian culture, the oldest male child in the family is responsible for the development of younger siblings, I do not understand that to mean he has a legal responsibility. I have therefore formed the view that this factor does not apply to Mr Fiu.
However, if I am wrong in my understanding of the Primary Consideration dealing with the best interests of minor children in Australia, I have nevertheless found that Mr Fiu would not be likely to have a meaningful impact on the remainder of his younger brothers’ time as children, and may well not be a positive role model for his younger brothers. I had no evidence either from his younger brothers or Mr Fiu that he could contribute meaningfully to their education or social development.
The final Primary Consideration involves expectations of the Australian community. I have found that the Australian community would expect to be protected from criminal conduct of the nature perpetrated by Mr Fiu on innocent victims. The tolerance of the Australian community to his conduct would be extremely low. Despite the fact that Mr Fiu arrived in Australia at a very early age, I have found that this provides little support as far as the expectations of the Australian community are concerned.
As for the Other Considerations, which are generally given less weight than the Primary Considerations, the strength and nature of his ties to Australia undoubtedly favours a decision which permits Mr Fiu to remain in Australia. Even so, it is difficult to understand how the strength of those family ties, which existed prior to his offending, had no impact on him at a much earlier age. It seems to be only now that his visa has been revoked and he faces returned to New Zealand that he appears likely to seek and accept support from family members. I accept, however, that there will be a significant emotional impact on them. While existing family members in Australia would certainly experience disappointment at Mr Fiu being returned to New Zealand, there was no evidence that they would be economically affected.
While I did not have an impact statement from any victims of Mr Fiu’s offending, I believe it is safe to say that a number of them would have suffered severe psychological trauma. I have little doubt that they would not wish to come across Mr Fiu in the Australian community.
Finally, although I accept that Mr Fiu will suffer initial difficulties in re-establishing his life in New Zealand, it appears likely he will have the assistance of his partner Ms Dauti. Furthermore, there was no evidence before me to suggest they would not be entitled to precisely the same benefits available to other citizens in New Zealand should they require Social Security or healthcare assistance.
It is clear that the Primary Considerations all weigh in favour of a decision not to revoke the cancellation of Mr Fiu’s visa. Of the Other Considerations, his ties to family in Australia favour him remaining in this country particularly given that he has no other family in New Zealand. However the impact on victims supports the finding that he should be removed to New Zealand. There are no significant impediments which Mr Fiu will face on return to New Zealand even though I accept there will be difficulties establishing himself there. However that difficulty is not significantly different to the difficulties faced by a person returning into the community following a lengthy prison sentence in Australia. Clearly, taking into account the Primary and Other Considerations, the factors I have considered weigh heavily in favour of non-revocation of the decision to cancel Mr Fiu’s Class TY Subclass 444 Special Category (Temporary) Visa.
CONCLUSION
I have found that the decision made by a delegate of the Minister on 29 March 2017 not to revoke the decision to cancel Mr Fiu’s Class TY Subclass 444 Special Category (Temporary) Visa was the preferable decision. I affirm that decision.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
...................................[sgd].....................................
Associate
Dated: 23 June 2017
Date of hearing: 14 June 2017 Counsel for the Applicant: Mr N. Poynder Solicitors for the Applicant: FCG Legal Pty Ltd Advocate for the Respondent: Ms L. Helsdon Solicitors for the Respondent: Sparke Helmore Lawyers
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