Fiu and Minister for Immigration and Border Protection (Migration)
[2017] AATA 954
•21 June 2017
Fiu and Minister for Immigration and Border Protection (Migration) [2017] AATA 954 (21 June 2017)
Division:GENERAL DIVISION
File Number: 2017/1983
Re:Pale Simanua Fiu
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:21 June 2017
Place:Melbourne
The Tribunal affirms the decision under review.
...........................[sgd].............................................
Regina Perton, Member
MIGRATION – non-revocation of mandatory visa cancellation – character test – protection of the Australia community – serious conduct – armed robbery – damage to property – possession of drugs – further offences in prison - expectations of Australian community – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(3A), 501CA
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Re Jupp and Minister for Immigration and Indigenous Affairs [2002] AATA 458
SECONDARY MATERIALS
Ministerial Direction No. 65: Visa refusal and cancelation under s501 and revocation of a mandatory cancellation of a visa under s501CA issued on 22 December 2014
REASONS FOR DECISION
Regina Perton, Member
21 June 2017
Pale Fiu was born in Auckland, New Zealand in April 1992. He arrived in Australia on 28 January 1996 as the holder of a Class TY, Subclass 444 Special category (Temporary) visa and has resided here continuously since then.
Mr Fiu has a substantial criminal history which includes periods of imprisonment for offences involving armed robbery, intentionally damaging property, unlicensed driving, possession of drugs of dependence and handling/receiving stolen goods, and appearances in the Children’s Court for various offences.
On 18 December 2014 Mr Fiu’s visa was cancelled (the cancellation decision) under section 501(3A) of the Migration Act 1958 (the Act). This was a mandatory cancellation by the Minister for Immigration and Border Protection (the Minister) because Mr Fiu did not pass the character test as set out in s 501(6) of the Act. The Minister found that Mr Fiu did not pass that test as he had a substantial criminal record (under s 501(7)(c) of the Act), having been sentenced to a term of imprisonment of 12 months or more. In particular, on 14 February 2013, he was convicted of armed robbery, for which he was sentenced to 39 months’ imprisonment.
On 8 January 2015 Mr Fiu lodged a Request for Revocation of a Mandatory Visa Cancellation with the Department of Immigration and Border Protection (the Department) under s 501(3A) of the Act.
On 28 March 2017 a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of Mr Fiu’s visa because the delegate was not satisfied that there was another reason why the original decision should be revoked.
On 7 April 2017 the Tribunal received an application from Mr Fiu for review of the delegate’s decision. He is currently in Barwon Prison.
A hearing was held on 15 June 2017. Mr Fiu appeared in person and gave oral evidence as did other witnesses supporting him. Those witnesses had provided written statements prior to giving oral evidence as required under the legislation.
ISSUE
Mr Fiu concedes that he does not pass the character test in accordance with s 501CA(4)(b)(i) of the Act. The sole issue for determination by the Tribunal is whether, having regard to the considerations set out in Direction No. 65 – Migration Act 1958 – Direction Under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), the discretion in s 501CA(4) of the Act should be exercised to revoke the mandatory cancellation of Mr Fiu’s visa if the Tribunal is satisfied that there is another reason why the original decision should be revoked.
CONSIDERATION
Mandatory visa cancellation
Section 501(3A) of the Act provides:
Refusal or cancellation of visa on character grounds
…
(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)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an office against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act provides:
Character test
(6)For the purposes of this section, a person does not pass the “character test” if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7)(c) of the Act provides:
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(d)the person has been sentenced to a term of imprisonment of 12 months or more.
…
Discretion to revoke mandatory visa cancellation – s 501CA
Section 501CA(4) of the Act provides that the Minister may revoke a decision to cancel a visa under s 501(3A) of the Act (referred to in s 501CA(4) of the Act as the “original decision”) if:
(a) the person makes representation in accordance with the invitation; and
(b)the Minister is satisfied:
…
(ii)that there is another reason why the original decision should be revoked.
Direction 65 came into operation on 23 December 2014 and is binding on all decision-makers (including the Tribunal on review) from that date. Direction 65 provides guidance to decision-makers on, among other matters, the exercise of the discretion in s 501CA(4) of the Act to revoke the cancellation of the visa by the Minister under s 501(3A) of the Act.
Paragraph 7(1) of Direction 65 provides guidance as to how the discretion in s 501CA is to be exercised:
7.How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction 65 states:
8.Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
…
(4)Primary considerations should generally be given greater weight than the other considerations.
Paragraph 13(2) of Part C of Direction 65 sets out the primary considerations that a decision-maker must take into account in deciding whether to revoke the cancellation of a non-citizen’s visa. Paragraph 13(2) states:
13.Primary considerations – revocation requests
…
(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.
Due consideration is to be given by decision-makers (including the Tribunal) to the General Guidance and Principles set out in the Preamble in paragraph 6 of Direction 65:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
6.3 Principles
…
(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.
…
Primary considerations
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction 65 states that decision-makers considering protection of the Australian community should be guided by paragraph 6.2(1) of Direction 65. Paragraph 13.1(2) of Direction 65 identifies the following two factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 65 provides a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. Paragraph 13.1.1(1) of Direction 65 states:
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
(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 repeat offending;
…
A summary of Mr Fiu’s criminal history as disclosed in a National Police Certificate dated 15 June 2017 is reproduced in the following table (with original spelling):
Court
Court Date
Offence
Court Result
Melbourne County Court
04 Jun 2015
Affray (common law) recklessly cause injury common law assault (3 charges)
Aggregate 18 months. 6 months of sentence concurrent with sentence now serving.
Melbourne Magistrates Court
03 Apr 2013
Handle /receive / retention stolen goods
6 months imprisonment. concurrent.
effective total state term imposed is 6 months
Melbourne County Court
14 Feb 2013
Armed robbery
Armed robbery
Armed robbery (2 charges)
Armed robbery
Armed robbery
39 months
33 months. 28 months of sentence concurrent
33 months on each count. 29 months of each count concurrent and concurrent.
27 months concurrent. To pay $200.00 compensation
27 months concurrent. To pay $160.00 compensation.
Melbourne County Court 14 Feb 2013 Intentionally damage property
Intentionally damage property
Intentionally damage property
Intentionally damage property
Possess drug of dependence (not named)
9 months. 8 months of sentence concurrent.
6 months concurrent.
4 months concurrent.
1 month concurrent.
Total 4 years, 5 months. Non-parole period of 2 years, 5 months. (declare a period of 182 days have already been served by way of pre-sentence detention.)
Convicted and fined $100.00. property forfeited. Order pursuant to s.464zf(2) crimes ACT for the taking of a non-intimate sample.
Melbourne Childrens Court 02 May 2011 Theft of a motor vehicle
Fail to answer Bail Granted
Without conviction, fined $550.00 with $66.60 statutory costs
Without conviction, fined $100.00
Sunshine Childrens Court 20 Apr 2009 Burglary (3 charges) theft-from shop (shopsteal) (3 charges) attempt to commit indictable offence (5 charges) intentionally damage property recklessly cause injury
Possess dangerous article in public place
Without conviction, the defendant is placed on probation for a period of 5 months to 19/9/2009 all core probation conditions apply.
Without conviction, the defendant is placed on probation for a period of 5 months to 19/9/2009 all core probation conditions apply.
Mildura Childrens court 07 Aug 2007 Theft from motor vehicle Without conviction, charge(s) found proved and dismissed. Released upon defendant entering accountable undertaking starting on 7/8/2007 for a period of 6 months to 6/2/2008
the following special conditions apply to this order: to be of good behaviour.
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously: paragraph 13.1.1(1)(a) of Direction 65
The list of convictions demonstrates that Mr Fiu commenced offending in 2007 at the age of 15 years, and appeared in the Children’s Court on various other charges in 2009, 2010 and 2011. In 2012 in company with his brother who is about 18 months older and two other co-offenders, he carried out four separate armed robberies at licensed venues in Melbourne. Three incidents occurred on 16 July 2012. In the first incident, the offenders smashed their way into the premises using a metal pole and other weapons and threatened patrons and staff. A total of $6,045 was stolen. In the second incident, the offenders entered the bar area and told patrons to lie on the floor. After threatening to hit patrons with a baseball bat, Mr Fiu smashed display units and computers. A total of $2,100 was stolen.
In the third incident, the offenders smashed a glass partition and one pointed a handgun at a cashier and demanded money. Mr Fiu and a co-offender smashed four poker machines and a glass screen. Mr Fiu struck a security officer twice with the baseball bat, causing bruising. A total of about $5,000 was stolen and damage to the venue was around $30,000. In the fourth incident on 2 August 2012, the offenders entered the premises by smashing a glass panel and threatened patrons and staff in the gaming room. This venue had also been one of the three places threatened on 16 July 2012. Mr Fiu used the baseball bat to damage poker machines, causing damage of about $20,000. An amount of cash was stolen. The offenders were arrested on 16 August 2012.
The sentencing Judge in the County Court of Victoria on 14 February 2013 referred to a letter written by Mr Fiu expressing remorse and insight into his offending, and noted that Mr Fiu had completed a number of courses whilst on remand. The Judge also gave weight to Mr Fiu’s age at the time of the offences in setting the length of time to be served. The Judge also commented that Mr Fiu’s prospects for rehabilitation were good.
On 3 April 2013 Mr Fiu was sentenced to a further six months’ imprisonment to be served concurrently following his purchase of dirt motor bikes that turned out to be stolen property. These offences pre-dated his imprisonment on the armed robbery charges.
On 4 June 2015 Mr Fiu pleaded guilty to a number of charges including affray, unlawful assault and recklessly causing injury, arising from a riot at Fulham Correctional Centre in June 2013 after he and his brother were refused permission to attend their grandmother’s funeral. He was sentenced to 18 months’ imprisonment to be served cumulatively, but this was reduced to 12 months on appeal.
In a written statement dated 17 March 2017, Mr Fiu said that he was aged four years when he came to Australia in 1996 with his parents and brother. The family is of Samoan heritage and lived in Brisbane, Sydney and then Melbourne. He said that he had a close relationship with his late mother and that his father was violent towards him and his mother, particularly when drunk. There were disagreements at home between his parents and money was always in short supply because his mother had a gambling addiction. Mr Fiu stated that the family moved around Australia frequently during his school years and that his mother became seriously ill in 2006. She died in 2007, leaving six children.
Mr Fiu’s family lived in Shepparton after his mother’s death where Mr Fiu’s father had family support. Mr Fiu said that he was confused and grieving, and felt isolated. He ran away from home to live in Mildura, where he commenced using methamphetamine (ice). He commenced offending whilst in Mildura and appeared in the Children’s Court. He said that his older brother (a co-offender in the 2012 offences) took him back to Melbourne where he found employment loading and unloading shipping containers. He then worked for his brother’s tree-lopping business. Mr Fiu stated that he increased his use of ice and became addicted, and he owed money to a drug dealer. This prompted him and his brother to take part in the armed robberies in 2012.
Mr Fiu said that feels ashamed at taking part in the offences, and regrets causing fear and physical harm to the victims as well as pain to his family. He explained that while in prison he attended Melbourne Magistrates’ Court in April 2013 where he was convicted of handling/receiving/retention of stolen goods and was sentenced to six months’ prison, to be served concurrently. He said that he was charged when police attended his house to arrest a cousin and found two stolen motorcycles that Mr Fiu had purchased.
In relation to the incident at Fulham Correctional Centre, Mr Fiu said that at the time he was grieving for his grandmother, with whom he had been close, and he regrets his role in the incident. He was also charged with a prison offence of disruptive behaviour over a separate but minor incident in 2016.
The Tribunal views Mr Fiu’s crimes very seriously, particularly his offences involving violence and damage to property.
The sentence imposed by the Court – paragraph 13.1.1(1)(c) of Direction 65
In relation to the armed robbery and property offences, Mr Fiu pleaded guilty to all charges. At the plea hearing he told the County Court that he needed money to pay for drug debts and his ice addiction, but in the sentencing remarks on 14 February 2013 the Judge did not accept that the addiction reduced the moral culpability for the offending. The Judge described armed robbery as …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. The Judge said that the features of the offences that go to their seriousness were that they were committed in company; each offender was disguised; the targets were the subject of prior surveillance; each offender carried a weapon that caused fear among the victims; and the wanton gratuitous property damage. The aggregate sentence of 4 years and 5 months with a non-parole period of 2 years and 5 months took into account the period of incarceration on remand from 28 August 2012 to 14 February 2013.
In relation to the riot at Fulham prison, the County Court effectively added a further 12 months to Mr Fiu’s armed robbery sentences. Several prison officers were injured in the unrest which was initiated by Mr Fiu and his brother following the refusal of permission to attend their grandmother’s funeral. Other prisoners joined in the affray.
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; The cumulative effect of the repeated offending – paragraph 13.1.1(d) and (e) of Direction 65
The seriousness of Mr Fiu’s crimes can be demonstrated by his appearances in the Children’s Court in 2007, 2009 and 2011, the Melbourne County Court in 2013 and 2015 as well as appearances in the Melbourne Magistrates’ Court in 2013. He has been convicted of violent and dishonesty offences over a period of eight years commencing when he was 15 years old. The level of violence he took part in increased, particularly in striking a person with a baseball bat as well as damaging gaming machines and the surroundings. Mr Fiu continued to offend whilst in prison resulting in a further sentence.
After the 2013 prison unrest, Mr Fiu was transferred from Fulham prison to the Acacia Unit at Barwon Prison which houses maximum security prisoners, reflecting the seriousness with which prison officials viewed Mr Fiu’s behaviour at Fulham. Mr Fiu told the Tribunal that he is now in a lower security part of Barwon Prison which allows him extra visits and telephone calls as well as a lengthier time daily out of his prison cell.
(b) Risk to the Australian community
Paragraph 13.1.2 of Direction 65 sets out principles and factors to which decision-makers must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It states:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serous conduct
(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).
Mr Fiu acknowledged that his record while in prison is far from perfect. He said that despite the incidents in which he was involved, he has worked hard to understand his offending. He has engaged in various courses and programs involving harm reduction, violence intervention and individual counselling and stated that the counselling has helped him to recognise that a lack of self-confidence and his former social group had encouraged his substance abuse. He said that he is working on strategies to control his emotions and reduce the triggers that encouraged the drug use. Mr Fiu emphasised that he has never tested positive for drugs since his incarceration and is determined not to use any drugs in the future.
Mr Fiu pointed out that he is more mature and more grounded than previously and that he understands the importance of family and the need to refrain from using drugs and engaging in illegal activity. He said that he has been offered an apprenticeship in bricklaying when he is released and looks forward to working full-time, saving some money and building a better future for himself. He said that he believes that prison has done him a lot of good. He emphasised that he has stayed in touch with his family and has re-connected with his father. He said that he wants to make a contribution to the Australian community by starting a business and hopes one day to have a family of his own.
In relation to the level of support within the community, Mr Fiu stated that he has a large extended family in Australia. He said that he would live with his father if permitted to remain and would like to be given the opportunity to help his brothers and to make up for past mistakes.
Mr Tim Watson-Munro, consultant forensic psychologist, stated in a report dated 18 May 2017 that he examined Mr Fiu on 16 May 2017. He said in the Opinion section of his report:
[1] …It is clear that his custodial experience has had a salutary impact upon his strong motivation in the present to maintain a law-abiding existence in Australia, if he is given the opportunity…At examination Mr Fiu expressed appropriate and I believe genuine remorse for his actions. His offending behaviour occurred when he was very young and consequently immature…
…
[3] Since that time [the incident at Fulham Correctional Centre] he has worked assiduously to deal with his problems within the prison environment. To this end he has undertaken a number of courses, in addition to receiving one-to-one counselling on a weekly basis for the past 12 months. This has been a substantial benefit to him by equipping him with appropriate skills to manage his anxiety, his impulse control and anger. This is of considerable relevance in terms of an overall assessment of his risk to the community upon release. Clearly, a major consideration in this case is the risk to the Australian community of Mr Fiu committing further offences or engaging in other serious conduct. There is no argument that his prior forensic history is troubling. It is apparent however that Mr Fiu has made considerable gains during the course of his incarceration, particularly in the last 12 months or so. He has matured, he is insightful to the dynamic surrounding his offending behaviour and has expressed what I believe to be appropriate and genuine remorse for his actions. This has been a function of attaining a drug-free status, the love and support which he enjoys from his family and in particular, his stepmother and father. He is also acutely aware that the consequences should he offend in any way at all if he is permitted the privilege of remaining in Australia…There is a clear nexus between his offending behaviour and drug addiction. Provided that he remains drug-free with the type of parameters I am describing, the risk of him reoffending is substantially reduced.
…
[6] …I believe that if given the opportunity, with continuing support, supervision and treatment, his prognosis both forensically and clinically is positive.
In oral evidence Mr Watson-Munro made a number of comments about aspects of his report. He stated that Mr Fiu was not fully mature when he committed his crimes but that did not excuse the serious crimes he committed. He commented on the impact of youth on offending behaviour. Mr Watson-Munro described the evil and dangerous effect of ice, even when used in small doses. He commented that Mr Fiu had been clean in every drug test undertaken despite the availability of drugs in the prison system. He stated that Mr Fiu still has issues he needs to deal with and stated that Mr Fiu should continue with treatment and supervision if he is released in Australia. He further stated that if Mr Fiu is in New Zealand, he should also continue with treatment.
Ms Melissa Pardi, psychologist with Carniche Drug and Alcohol Services, provided a statement dated 30 May 2017, other written material prepared in June and September 2016 and gave oral evidence. In her statement, Ms Pardi stated:
On the 19th May 2016 Mr. Fiu commenced weekly individual Drug and Alcohol Counselling. To date, he has attended 32 individual counselling sessions. Individual counselling allows participants to focus on the issues that underlie their drug and/or alcohol issues and offending behaviour. This program is tailored to the individual’s particular needs and situation but essentially encourages them to develop self-awareness, take responsibility for their behaviour and develop more pro-social behaviours. During individual counselling, Mr. Fiu has been open to the therapeutic process and has been able to explore some of the issues underlying his substance abuse and offending behaviour. He has agreed to attend individual counselling sessions until he is released from prison and/or transferred from this location.
On Mr Fiu’s behalf it was submitted that, although he has committed serious offences even while in prison, he has now matured and the risk of re-offending is low given his present circumstances and his rehabilitation while in prison. It was also submitted that the community would be willing to afford him a higher level of tolerance in this respect, particularly as the serious offences were committed when he was relatively young and he did not have the benefit of a happy and nurturing family life after the death of his mother when he was aged 15 years.
The Tribunal acknowledges that Mr Fiu’s family circumstances were difficult as a result of violence allegedly perpetrated by his father exacerbated by alcohol problems, and his mother’s gambling addiction and early death. The Tribunal also takes into account Mr Watson-Munro’s evidence of the positive steps taken by Mr Fiu and the opinion that there is a reduced risk of reoffending if Mr Fiu remains drug-free, although the Tribunal does not accept Mr Watson-Munro’s assertion that Mr Fiu’s offending behaviour occurred when he was very young and consequently immature. The serious offences involving violence occurred in 2012 and 2013 when Mr Fiu was aged 20 and 21 years respectively, and was therefore an adult who had had extensive experience in the legal system.
The Tribunal also takes into consideration that despite his incarceration and the need to demonstrate good behaviour in prison, Mr Fiu nevertheless was involved in a violent incident in June 2013 that resulted in a riot and led to an additional prison sentence. He also was charged with a prison offence of disruptive behaviour in mid-2016.
In all the circumstances the Tribunal considers that the risks of reoffending and drug use are real. Mr Fiu has committed serious offences and has reoffended, on one occasion violently, while in prison, despite the consequences of such behaviour. He has asserted that he has made considerable progress in his drug rehabilitation by remaining drug-free in prison and completing various programs, but he had an addiction to ice and there remains some reservation about whether he has rehabilitated properly. When released from prison, if he reoffends in a manner similar to his past offending, the cumulative impact would cause significant harm to the Australian community.
For these reasons, the Tribunal finds that the first primary consideration weighs strongly in favour of non-revocation of the mandatory cancellation of Mr Fiu’s visa.
(ii) Best interests of minor children in Australia
The second primary consideration listed in Direction 65 is the Best interests of minor children in Australia affected by the decision. Paragraph 13.2(1) of Direction 65 states:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
Mr Fiu has five brothers, two of whom are minors, one aged 16 years and the other aged 14 years. In a letter of support dated 3 November 2016 the 16 year old said that he has been able to visit his brother from time to time and has seen the way Mr Fiu has changed. He noted that Mr Fiu regrets the things he has done wrong and the impact it has had on the family, particularly as Mr Fiu has not been able to participate in family celebrations and activities. In a letter of support dated 3 November 2016 the youngest brother said that in the last four years he has missed family time and celebrations with Mr Fiu due to the prison sentence and that he would miss more family time if Mr Fiu is forced to return to New Zealand, where he would be alone and without family support.
The Tribunal accepts that revocation of the cancellation of the visa would be in the best interests of the two minor children, both of whom have visited Mr Fiu in prison and have indicated that they wish to have a close relationship with him when he completes his sentence. However, there is no evidence that Mr Fiu has a parental relationship with them. He has not played a major part in their daily lives because of his absences due to his offending and the four years he has spent in prison. His financial assistance to them in recent years has been limited due to his drug debts and his reduced ability to engage in paid employment.
For these reasons, the Tribunal finds that the second primary consideration weighs slightly in favour of the revocation of the mandatory cancellation of Mr Fiu’s visa.
(iii) Expectations of the Australian Community
The third primary consideration listed in paragraph 13(2) of Direction 65 is Expectations of the Australian Community. Paragraph 13.3 of Direction 65 provides:
13.3 Expectations of the Australian community
(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 to not 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 would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal accepts that there would be differing views within the Australian community about Mr Fiu. However, Paragraph 6.3(2) of the Direction clearly states that the Australian community expects that the Australian Government should cancel the visas of people who commit serious crimes in Australia. Paragraph 13.3 of the Direction further reinforces that message.
The Tribunal takes into account that Mr Fiu commenced offending at the age of 15 years and has reoffended numerous times, including serious incidents of multiple armed robberies with associated extensive damage to property and threats of violence to innocent victims while armed with a weapon. He struck one of the victims with a baseball bat resulting in bruising. While in prison Mr Fiu engaged in a riot involving further acts of violence, injuries to prison officials and damage to property when he was refused permission to attend his grandmother’s funeral. Although he has successfully completed various courses and has undergone personal counselling while in prison, and despite his relative youth, the Tribunal finds, taking into account the wording of the Direction above, that the Australian community would conclude that he has breached their trust and they would not tolerate the behaviour exhibited by Mr Fiu. Consequently they would expect that he should not hold a visa.
For these reasons, the Tribunal finds that the third primary consideration weighs strongly in favour of non-revocation of the mandatory cancellation of Mr Fiu’s visa.
Other considerations
Paragraph 14(1) of Direction No 65 states:
14.Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Neither the applicant nor the respondent has submitted that impact on Australian business interests or impact on victims are relevant considerations to be taken into account in this matter. There is no evidence before the Tribunal concerning the impact that non-revocation of Mr Fiu’s visa cancellation would have on Australian business interests or the victims of his offending. Accordingly, these two considerations have been assigned no weight.
14(1)(a) International non-refoulement obligations
Paragraph 14.1(1) of Direction 65 states:
14.1International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision makers should follow the tests enunciated in the Act.
Mr Fiu, in his written statements, indicated that, although he did not come to Australia on a refugee visa, non-refoulement obligations could be relevant because his father made the decision to move to Australia partly as a result of fear of violence that might be inflicted by motor cycle gang members. He said that his father has expressed concern at the risk of harm in New Zealand because the perpetrators of the threats may come to know that he is the son of their earlier victim. In his written statement he said that he worries about the consequences if the perpetrators discover his identity and his presence in New Zealand.
Mr Fiu’s father informed the Tribunal that he had owed a few hundred dollars to some bikies prior to coming to Australia. He said that that he moved from Auckland to another city to avoid them. He did concede that he had come to Australia primarily for better opportunities for himself and his family although he maintained a concern that his son might nonetheless be identified through his surname if returned to New Zealand and be in trouble with those bikies.
Although claims of possible violence against Mr Fiu should not be dismissed, the Tribunal considers that the likelihood of this occurring to the son of the alleged victim more than 20 years after the father left New Zealand is remote. No evidence of any existing or possible threats has been presented. Mr Fiu knew little of what transpired when questioned during the hearing. Mr Fiu has told the Tribunal that he knows no one in New Zealand, so he would not be obliged to live in any particular location where he may be subjected to the risk of harm.
Accordingly Australia’s non-refoulement obligations do not assist Mr Fiu in this case.
14(1)(b) Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 65 provides:
14.2Strength, nature and duration of ties
(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-citizens immediate family in Australia (where those family members are Australian citizens who have a right to remain in Australia indefinitely).
Mr Fiu stated that he has strong and close ties to the Australian community. He noted that he came to this country at the age of four years and has lived here for more than 20 years. He referred to his large and supportive family in Australia, including his father, stepmother, grandparents, five brothers, 13 uncles and aunts, 9 nieces and nephews and 30 cousins, and said that he has maintained regular contact with his family since his incarceration. Around thirty relatives and friends attended the hearing.
The Tribunal had before it many statements and letters of support from numerous family members, who indicated that they would provide emotional, financial and practical support, including employment and accommodation, if Mr Fiu is permitted to remain in Australia. He explained that as his mother and maternal grandmother are deceased, for cultural reasons, the family places significance on visiting their graves in Melbourne on important occasions.
Mr Simanua Fiu, Mr Fiu’s father, a bus driver, provided a written statement dated 8 May 2017 and a joint statement with his partner which was undated. He also gave oral evidence at the hearing. He was candid about the upbringing provided to Mr Fiu. Mr Simanua Fiu said that he had not really participated in the upbringing of his oldest two sons, never being concerned about their educational or sporting pursuits or spending much time with them. He said his wife’s death had a profound impact on him and that he now has a totally different approach to his two youngest sons, being involved in their day to day activities and voluntarily helping in their chosen sports.
Mr Simanua Fiu said that Mr Fiu could live with him and his partner. They were happy to help him in whatever way he needed. Mr Simanua Fiu said that he and Mr Fiu are now communicating well. He said that his son was ashamed of his past behaviour. He also stated that they had made enquiries and found an appropriate program for him to continue counselling when he is released from prison.
Questioned about Mr Fiu’s early history of trouble with the law which resulted in Children’s Court appearances, Mr Fiu conceded that he did not know about them.
Ms Amy Stuart-Poynton is Mr Simanua Fiu’s partner. She provided a statutory declaration dated 18 May 2017 and the joint written statement with Mr Fiu mentioned above. She also gave oral evidence at the hearing. She and Mr Simanua Fiu have been together for more than four years after meeting at work. She reiterated her partner’s comments about their willingness to have Mr Fiu live with them after release. She and Mr Simanua Fiu are raising the two youngest sons. The two middle sons who are both over 18 live with other relatives. Ms Stuart-Poynton said that she is willing to support Mr Fiu financially, physically and in helping him to get around. She conceded that Mr Fiu is not perfect and had made a lot of mistakes but that she believes he is prepared to do his best to turn his life around and that she and his father will help him to achieve his goals.
Ms Joyce Faamoe, Mr Fiu’s aunt and the sister of his father, Mr Simanua Fiu, provided statements dated 7 June 2016 and 19 May 2017 and gave oral evidence. Ms Faamoe indicated that she and other family members had not realised that Mr Fiu had become a drug user after his mother’s death. She had been very upset when she realised her nephew had committed the crimes and found it hard to reconcile that such a kind, loving and helpful child could act as he did. She stated that her brother, Mr Fiu’s father, had changed since the death of his wife and was committed to caring for his son, wishing he had treated him differently when he was young. She also named other members of the extended family who were willing to assist Mr Fiu if he is allowed to stay in Australia.
Ms Tille Afuie, Mr Fiu’s mother’s youngest sister, provided a statement dated 18 May 2017 and gave oral evidence. She stated that her nephew has great remorse and regrets for his bad decisions. She described him as hardworking and caring and very family-oriented. Ms Afuie stated that Mr Fiu’s family all lived in Victoria and that was where all his support would be.
The Tribunal accepts that Mr Fiu has lived in Australia for most of his life and has strong ties to the Australian community. He has contributed to Australian society when employed loading and unloading shipping containers, and as a tree lopper. He has support from a large family residing in Australia and has received offers of assistance with his accommodation, employment and finances. However he commenced his offending as a minor and this has continued through his early adult life.
The Tribunal accepts that his father, stepmother and extended family are now aware of Mr Fiu’s past and the challenges he will face. The Tribunal does not doubt their good intentions or those of Mr Fiu. However, the Tribunal is not fully convinced that Mr Fiu will allow himself to be supervised and his activities controlled by his family given he is now a 25 year old adult.
For these reasons, the Tribunal finds that this consideration weighs in favour of the revocation of the mandatory cancellation of Mr Fiu’s visa.
14(1)(e) The extent of any impediments if removed
Paragraph 14.5(1) of Direction No 65 provides:
14.5Extent of impediments if removed
(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 told the Tribunal that if he were removed to New Zealand it would be devastating for him because of the separation from his extended family on a permanent basis. He said that he has no memory of New Zealand which he has not visited since coming to Australia as a child and knows no-one there. He stated that he would be returning as a stranger in that country without support, friends, employment or a network to assist his rehabilitation and the rebuilding of his life after a relatively lengthy period of incarceration.
The Tribunal accepts that after living in Australia for most of his life there would be some emotional and financial hardship for Mr Fiu in adjusting to life in New Zealand separated from his family. However, culturally and linguistically, the two countries are similar, and New Zealand has a comparable system of social welfare, health care and education to which he would have access to the same extent as other citizens. He is a relatively young person who is in apparent good health and would be able to seek employment and re-integrate into society. He could maintain regular contact with family members through electronic and telephone facilities and through visits from them.
On balance the Tribunal finds that that there are no impediments to Mr Fiu’s removal that weigh in favour of revoking the mandatory cancellation of his visa.
SUBMISSIONS
Mr Guy Gilbert, representing Mr Fiu, referred to the extensive written submissions from family and from Mr Fiu himself. He stressed the impact of youth on his decision making resulting in his involvement in criminal activity. He spoke of the genuine remorse Mr Fiu had exhibited and that he had not sought to blame others for his crimes. Mr Gilbert described the impact of his incarceration on Mr Fiu and his determination to become a productive and responsible member of Australian society. He described the changes in his father’s situation and his father’s wish to atone for the way he had dealt with his second son when he was growing up.
Mr Gilbert stressed that Mr Fiu realises that he needs help and is willing to undertake counselling and allow his family to help him. Mr Gilbert said that Mr Fiu does not have to establish that there is no risk if he is allowed to remain in Australia. He also made the point that Mr Fiu does not have the opportunity to demonstrate that he would not be a risk in the community as the decision regarding his visa is being made while he is incarcerated.
The Minister’s representative, Mr Gell, acknowledged that Mr Fiu was genuine in his remorse. However, he described the lengthy prison sentence imposed for serious crimes which included being violent to prison officers not long after he began his prison term. Mr Gell stated that the Minister contends that Mr Fiu presents an unacceptable risk to the community given the violent nature of his crimes. Mr Gell pointed out that Mr Fiu’s criminal behaviour was of a serious nature and showed a brazen disregard for Australian law. He stated that the nature of harm caused by Mr Fiu could be further violence, fear in the community and financial loss. He submitted that as Mr Fiu’s criminal history included assault during an armed robbery and of prison officials, it was likely he may engage in further criminal activity. He also submitted that although the sentencing judge in February 2013 thought Mr Fiu’s prospects of rehabilitation looked good, this had been undermined by the offences committed in prison.
Mr Gell suggested that the second primary consideration (best interests of minor children) might weigh slightly in favour of Mr Fiu but noted that he had not been a positive role model in prison. Furthermore, the two youngest brothers had a father and stepmother and other extended family to guide and take care of them.
Mr Gell submitted that the third primary consideration weighed heavily against revoking the mandatory cancellation, given Mr Fiu’s seven years of offending which included a number of violent acts and threats and a lack of respect for the community. He pointed out that Mr Fiu was given opportunities to reform in early court appearances but did not take advantage of those chances. He suggested that Mr Fiu had made little positive contribution to the Australian community.
In response, Mr Gilbert submitted that his client had undertaken anger management courses in prison and was committed to reforming his life. Mr Fiu was a different person to who he was when committing his crimes. He submitted that there was no foundation to the opinion that Mr Fiu presented a high risk of reoffending, conceding that there was some risk but not at the level submitted by Mr Gell. He noted that there had not been a formal risk assessment undertaken in this case.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 North ACJ stated at 345:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
Having regard to the primary considerations and the other relevant considerations specified in Direction 65, and in particular Mr Fiu’s criminal history over a significant period and the seriousness and nature of the offences for which he was convicted and received custodial sentences, the Tribunal concludes that it cannot be satisfied that there is another reason why the cancellation decision should be revoked.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member.
...........................[sgd].............................................
Associate
Dated: 21 June 2017
Date of hearing: 15 June 2017 Counsel for the
Applicant:Mr Guy Gilbert Solicitors for the Applicant:
Clothier Anderson
Advocate for the
Respondent:Mr Lachlan Gell
Solicitors for the Respondent:
Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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