Fiu Uolilo and Minister for Home Affairs (Migration)
[2018] AATA 2876
•13 August 2018
Fiu Uolilo and Minister for Home Affairs (Migration) [2018] AATA 2876 (13 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2951
Re:Fiu Uoliloand Minister for Home Affairs
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:13 August 2018
Place:Sydney
The decision under review is affirmed.
........................[sgd]................................................
Chris Puplick AM, Senior MemberCATCHWORDS
MIGRATION – visa application refused - Applicant failed character test – failure to disclose details of criminal conviction and prison sentence – supply of false or misleading or non-genuine documents – “bogus document” defined - no formal extradition treaty between Australia and Samoa - Ministerial Direction 65 applied – protection of Australian community – best interests of minor children – expectations of Australian community – impact on family members – impact on victims - impact on Australian business interests – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 501, 501CA
Migration Regulations 1994 (Cth) – cll 100.222, 4020
Judicial Appointment (Western Samoa) Act 1980 (Cth)
CASES
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BFXK and Minister for Immigration and Border Protection [2018] AATA 866
Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs, Re [1991] 24 ALD 531
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Do and Minister for Immigration & Border Protection [2016] AATA 390
ER Aston and Y Aston and Secretary to the Department of Primary Industries, Re [1985] AATA 306
Gboujeh v Minister for Immigration and Border Protection [2014] FCA
Gordon v Minister for Immigration and Border Protection [2018] AATA 39
HSKJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1802
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
John Falzon and Minister for Immigration and Border Protection [2018] HCA 2
KDSP and Minister for Immigration & Border Protection [2017] AATA 2169
Khorn v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705
MAH v Minister for Immigration and Border Protection [2018] AATA 416.
Mahu v Minister for Immigration and Border Protection [2018] AATA 161
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575
Minister for Immigration and Multicultural Affairs v “SRT” [1999] 56 ALD 349
QGMJ v Minister for Immigration and Border Protection [2017] AATA 1537
R v Rowe [1991] 52 A Crim R 196
Rabino and Minister for Immigration & Border Protection [2016] AATA 999
Scott v Cameron [1980] 26 SASR 321
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296
Waits and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 1336
Webb v O’Sullivan [1952] SASR 65YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – ss 6, 12, 13, 14
Freedom House, Freedom in the World Report, Samoa
French R, CJ: “Interacting with Diversity: Australian Judges and Regional Courts”, paper given at Australian Institute of International Affairs – ACT Branch, 12 March 2010
Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworth, Australian 2015)“Two Australian judges take up temporary positions in Samoa”, Radio New Zealand News 8 May 2006. FOR DECISION
Chris Puplick AM, Senior Member
13 August 2018
The Issues
The Applicant, Mr Valufitu Fiu Uolilo, a citizen of Samoa, comes before this Tribunal seeking its determination to overturn a decision by the Delegate of the Minister for Home Affairs to refuse Mr Uolilo’s application for a Partner (Migrant)(Class BC) visa.
The decision to refuse the visa application was based upon the Delegate’s determination that Mr Uolilo failed to pass the character test as required under section 501 of the Migration Act 1958 (the Act) due to his having a “substantial criminal record” as defined by section 501(7)(c) of the Act.
This decision in turn was based upon the Delegate’s finding that, in both his visa application and on his incoming passenger card he had failed to disclose details of his criminal conviction and prison sentence in Samoa and further, that documents which he had submitted to the Australian authorities were “false or misleading”, or bogus in nature, in contravention of both section 5(1) of the Act and clause 4020(5) of the Migration Regulations 1994 (the Regulations).
The Questions
There are two distinct questions before the Tribunal:
·Is Mr Uolilo a person of good character as defined by the Act?
·In the event that he is not, should the Delegate’s decision be set aside on the basis that there are “sufficient countervailing considerations”,[1] bearing in mind the obligation of this Tribunal to be guided by Ministerial Direction 65, justifying reasons that he should nevertheless be granted a visa.
[1] This is the term used by the Delegate in making their original decision. G Documents, page 29.
The Answers
For the reasons set out below the answer to those two questions are:
·NO. Mr Uolilo is not a person of good character as required by the Act and the decision of the Delegate to refuse his visa application was correctly made.
·NO. Although there are weighty reasons why the revocation decision should be set aside, they are overborne by more compelling reasons that the original decision should be affirmed. In particular Mr Uolilo’s escape or absconding from lawful custody in Samoa cannot be overlooked.
PART ONE : BACKGROUND INFORMATION
Mr Uolilo: Personal Details
Mr Uolilo was born in Samoa on 19 June 1987. On 27 January 2012 he married his wife, a Samoan-born naturalised Australian citizen. It is unclear, and Mr Uolilo says he cannot remember, when the couple first met, other than that it was some time the previous year when the Applicant’s wife was visiting Samoa on holiday and to attend her sister’s wedding.
The couple must have met some time towards the middle of 2011 as their first daughter was born in April 2012.
The Applicant’s wife was born in Samoa on 30 May 1978 and was granted Australian citizenship on 18 August 2003. She had previously been in a de facto relationship from which she had two children, one born in January 2000 and another born in May 2003. She has custody of these children.
Mr Uolilo and his wife together have four children, born respectively in April 2012, April 2013, July 2015 and July 2017. All four children of the marriage are Australian citizens.
Mr Uolilo is step-father to the two children of his wife’s previous marriage. Of the six children five are minors and one achieved adulthood in January 2018.
Mr Uolilo: Visa Details
Mr Uolilo first arrived in Australia on 7 May 2012 holding a tourist visa. In accordance with its terms, he departed on 5 August 2012.
On 26 August 2013 Mr Uolilo and his wife made a combined application (in Samoa) for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa. On 9 July 2014 Mr Uolilo’s visa (Partner (Provisional) (Class UF)) was granted and on 31 August 2014 he arrived in Australia.
Mr Uolilo’s visa was subsequently cancelled on 29 October 2015. In the G-Documents before the Tribunal, the Respondent notes that this cancellation was on the basis that he had failed to declare certain criminal convictions on his incoming passenger cards dated 7 May 2012 and 31 August 2014.[2]
[2] Respondent Statement of Facts, Issues and Contentions, page 2.
The Tribunal was at a loss to understand why the Respondent would make a claim that the details on the May 2012 incoming passenger card were incorrect when in fact, Mr Uolilo was not convicted of any offence until October 2013. At the commencement of the hearings this error was acknowledged by the Respondent.
In any event, Mr Uolilo appealed that cancellation to the Migration and Refugee Division of this Tribunal which, on 3 May 2016, set aside the decision of the Delegate and substituted a decision not to cancel the visa, which is noted in that determination as a Subclass 309 (Spouse) (Provisional) visa. The relevant visa was thereby reinstated as of that day.
On 4 October 2016, the visa in question expired and the Delegate refused the Applicant’s request for a further visa, this time on the grounds that the applicant did not satisfy the requirements of clause 100.222 of Schedule 2 of the Regulations in that he provided evidence to the Department on 27 May 2014 that was considered to be of a “non-genuine” nature.
On the same day that the Subclass 309 visa was cancelled (4 October 2016) Mr Uolilo was granted a Bridging A (Class WA) visa which remains in effect.[3]
[3] G Documents, page 14.
The visa which was granted on 9 July 2014 had been applied for on 26 August 2013. As part of the processing of this application, the Australian Embassy in Apia (Samoa) requested, from the applicant’s wife (by verbal communication) that a copy of a Police Clearance Certificate be provided.[4] On 27 May the Embassy received such a police certificate (dated 27 May 2014) showing that the applicant had “No Criminal or Traffic Offences”.[5]
[4] G documents page 252. The Applicant’s wife gave testimony to this effect to the Tribunal, testimony which was not challenged by the Respondent.
[5] Respondent Statement of Facts, Issues and Contentions attachment 3, page 19.
However on 13 January 2014[6] the Applicant had been convicted in the Supreme Court of Samoa of the offences of committing grievous bodily harm and being armed with a dangerous weapon and had been sentenced to a term of imprisonment of 24 months on the first count and a term of 9 months imprisonment on the second (to be served concurrently).[7]
[6] Not 23 October 2013 as stated on the cover page of Respondent’s Statement of Facts, Issues and Contentions.
[7] G Documents, page 30.
(Various documents provided by both parties to the Tribunal refer to Mr Uolilo’s sentences as being a sentence of 24 months, however, although they were to be served concurrently, section 501(7A) of the Act requires that “the whole of each term is to be counted in working out the total of the terms”. Hence for the purposes of the Act, Mr Uolilo’s “term of imprisonment” is 33 months.)
It is this Samoan police certificate which the Delegate contends was provided by Mr Uolilo knowing it to be incorrect,[8] upon which reliance is now placed in terms of reasons for further refusal of Mr Uolilo’s visa.
[8] G Documents, page 23 (para 13) and page 26 (para 32).
Mr Uolilo lodged an appeal against the visa cancellation with this Tribunal (Migrant and Refugee Division) which, on 12 October 2017, set the cancellation aside and remitted the matter to the Department for reconsideration with the direction
“that the applicant meets the following criteria for a Subclass 100 (Spouse) visa: Public Interest Criterion 4020 for the purposes of cl.100.222 of Schedule 2 to the Regulations.”[9]
[9] G Documents, page 64.
This refers to there being compassionate or compelling circumstances affecting Australian citizens which warrant such a waiver of determinations being made.
The Department reconsidered the matter of Mr Uolilo’s visa (originally applied for on 26 August 2013) after receiving the remission from the Tribunal and on 30 November it notified Mr Uolilo of its intention to consider refusal.[10]
[10] G Documents, pages 82-85.
Responding to this, Mr Uolilo’s legal representatives made a detailed submission to the Department which, on 27 March 2018, decided that the visa application would be refused.
Mr Uolilo received notification of the visa refusal decision on 24 May 2018 and on 29 May 2018, lodged an appeal with this Tribunal – this being the matter now before it. As stated previously, this refusal was based upon the Delegate’s determination that Mr Uolilo failed the character test required under the Act because of his substantial criminal record.
PART TWO : THE CHARACTER TEST
The first fundamental question before the Tribunal is - does Mr Uolilo meet the character test?
This is a matter on which there can be no dispute – res ipsa loquitur. He does not.
Section 501(3A) of the Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not meet 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)
(emphasis added)
Those relevant sections provide:
Character test
501(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)
…………………
501(7) For the purpose of the character test, a person has a substantial criminal record if:
(a)……….
(b)………
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
The scheme is simple – the Minister must cancel a visa if a person has been convicted and sentenced to a term of imprisonment of 12 months of more.
Mr Uolilo was convicted and sentenced to a term of imprisonment of 33 months[11].
[11] As calculated under section 501(7A) of the Act.
He thus automatically fails the character test.
Mr Uolilo’s criminal history and convictions
The Tribunal must commence by noting that in many respects Mr Uolilo was not a particularly satisfactory witness. It was apparent that he had only a rudimentary understanding of many of the matters put to him through the Samoan interpreter. In numerous instances Mr Uolilo claimed that either he could not remember or he had no knowledge of the matters put to him. This lack of memory or recall extended even to not remembering when he first met his wife or, initially, the date of birth of his first daughter. Prima facie it was hard for the Tribunal to accept that Mr Uolilo simply had no ability to recall elementary matters related to his own life or relationships, but no suggestion was put to the Tribunal to excuse or explain this.
It was apparent that Mr Uolilo was barely literate in his own language and certainly had no serious capacity to read English. When taken to the various forms which he had signed he made it clear that he had no comprehension of all, or indeed almost any, of the relevant details contained therein; that he had asked other people to complete the forms for him and that he had trusted that they would do so accurately.
Mr Uolilo has put to the Tribunal, as was put to the Delegate, a considerable amount of evidence to establish that, in relation to the offence for which he was convicted:
·he was not the initiator of the assault for which he was convicted;
·his actions were essentially those of self-defence;
·the weapon was not, of itself, necessarily a dangerous object[12], rather it was the first thing that came to hand to defend himself;[13]
·the victim of the assault, who he alleges initiated the confrontation, had subsequently met with him, accepted his apology, they had reconciled and further he was prepared not to press charges;
·it was at the insistence of the Police that the matter went before the Court;
·in the Court he pleaded guilty because this was what the Police had advised him to do and so he never gave evidence to the Court, nor were any witnesses called to give evidence;[14]
·the sentence itself was unusually harsh in terms of the nature of the actual offence;
·he otherwise had an unblemished record with no previous convictions and that the actions in question were entirely out of character.
[12] In the Samoan court documents it is referred to as “a silver metal piece of pipe” G Documents, page 31, and in the Delegate’s Notice to Mr Uolilo of 30 November 2017 as a “muffler pipe” G Documents, page 16.
[13] G Documents, page 162.
[14] G Documents, pages 162-163, and in oral evidence to the Tribunal.
The incident in question took place on 30 October 2013,[15] first came before the Court on 18 November (when, apparently it was adjourned for lack of lawyers being present[16]) and came before the Court finally on 13 January 2014. On that date Mr Uolilo was sentenced and began his term of imprisonment.
[15] G Documents, page 31.
[16] Applicant’s documents, page 36.
It is a well-established principle in this Tribunal that the Tribunal is not permitted to “go behind” details of criminal convictions in the courts in any fashion which calls into question either the fact of the conviction or the imposition of an appropriate sentence.
This was made clear by the Federal Court in Gungor, where Fox J stated:
What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive, so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed.[17]
[17]Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575 at [578].
This prohibition also prevents the Tribunal making “an attack on the findings which support” any such conviction.[18]
[18] Ibid at [581] per Fox J.
However, in the same case, Sheppard J stated:
….the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may, in some cases, have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it, because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal's recommendation.[19]
[19] Ibid at [596]-[597] per Sheppard J.
Similarly in Minister for Immigration and Multicultural Affairs v “SRT”, the Federal Court repeated the point, holding that:
[40] The manner in which the tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than 1 year.
[41] There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.[20]
[20] [1999] 56 ALD 349 per Branson, Lindgren and Emmett JJ.
In Daniele, the Federal Court further outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[21]
[21]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ.
The Tribunal is well seized of how it has to work within these proper constraints, as was explained by Senior Member Taylor recently in MAH:
[23] In having regard to MAH’s criminal record the Tribunal may neither impugn the convictions nor the facts on which they were necessarily based. Minister for Immigration & Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 & 655; Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 at [25], [33]–[34]; Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313 at [42] & [44]. Even in relation to factual issues that were not essential to the conviction, the Tribunal should accept any findings that were made in the criminal proceedings: Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313 at [38] & [43]; and especially in connection with facts that were the basis of the sentencing decisions: Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 at [20] & [40]–[46].
[24] Notwithstanding those required acceptances, the Tribunal must, as a fundamental part of its task, permit an applicant to advance, and must form a judgment on, “all the matters which are relevant to the exercise of the power”: see Minister for Immigration & Ethnic Affairs v Daniele (1981) 39 ALR 649 per Davies J at 656; Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313 at [45]. In some instances this requirement may involve a degree of tension between the use of contentious evidence to explain the underlying circumstances of a conviction (a use that is permissible) and its impermissible use to question the conviction itself: Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441 at 469 per Sheppard J. However that potential is not significant in the present case, because of the paucity of the available information about the relevant “underlying circumstances”.[22]
[22] MAH v Minister for Immigration and Border Protection [2018] AATA 416.
Furthermore, Professor Dennis Pearce, in his authoritative text on the Tribunal notes:
So on an application to review a deportation order based on criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify evidence given at the trial.[23]
[23] Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworth, Australian 2015) page 138 citing Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs [1991] 24 ALD 531.
The Tribunal sees no reason not to extend to the Supreme Court of Samoa the same respect as to the courts of Australia. Indeed, in one of the documents tendered on behalf of the Applicant himself, it is stated in relation to Samoa that: “The judiciary is independent and upholds the right to a fair trial.” [24]
[24] Freedom House, Freedom in the World Report, Samoa at Applicant’s Evidence, item 8.
Although the Applicant has characterised the sentence as “harsh” [25] this Tribunal has no way of knowing whether or not that is the case; whether the Court’s sentencing practices justify such a comment; what the maximum penalty in regard to that offence is under Samoan law or exactly what evidence was before the Court, other than that outlined in the Applicant’s submission to this Tribunal.
[25] Applicant Statement of Facts, Issues and Contentions, para 22.
The Tribunal is thus prepared to take note of the material presented to it on behalf of the Applicant which may be relevant to his explanation of the conviction in question but does not accept any attempt to derogate from that verdict nor from the sentence. It should be noted that there is some degree of support for Mr Uolilo’s version of events provided in a “supportive letter”[26] provided by the Managing Director of the workplace in question in Samoa which was presented to the “Australian Immigration department, Melbourne, Australia” (sic) dated 15 October 2015.[27] The Respondent urged that the Tribunal should place only limited weight on this evidence and the Tribunal takes it to be generally corroborative rather than probative of Mr Uolilo’s description of both the incident in question and the apparent reconciliation of the offender and his victim.
[26] Applicant’s Documents, page 37.
[27] Applicant’s Documents, page 36.
The Respondent sought further to call into question Mr Uolilo’s account by drawing the attention of the Tribunal to the lack of material presented to it by the Applicant in terms of other statements either from the victim himself or from those co-workers who were witnesses to the offence. In response, Mr Uolilo indicated that he had made some attempt to contact some of these people, especially the victim, but had been unable to do so – especially since the victim was apparently currently now working in New Zealand.
The Tribunal has no way of verifying Mr Uolilo’s statement that he made efforts in this regard, but nevertheless, it draws no conclusions particularly adverse to Mr Uolilo in this instance.
Are there other relevant matters related to criminal conduct?
The supply of bogus or “non-genuine” documents
The Police Certificate
In support of his visa application, a Police Certificate from the Samoan Police, dated 27 May 2014, was submitted which indicated that he had no criminal or traffic offences, despite the fact that he had been convicted of a criminal offence on 13 January 2014. The Respondent makes the point that even if the Samoan police had genuinely issued a certificate which was itself erroneous (for whatever reason) Mr Uolilo knew that it was a misleading and untrue statement at the time that he submitted it to the Australian Embassy.
There is an alternate explanation, namely that the certificate itself was bogus and was deliberately created, knowing it to be false. This assumption was embraced by the Migration and Refugee Division in handing down its determination of 12 October 2017.[28] This is not a position taken by this Tribunal – there is no reliable evidence upon which to base such a conclusion. It is equally likely that this was simply an administrative error.
[28] G Documents, page 67.
Clause 4020(5) of the Regulations provides that information that is false or misleading means information that is “false or misleading at the time it is given” and is relevant to the decision being made, whether or not that information was the actual basis for such a decision.
A “bogus document” is defined in s. 5(1) of the Act and encompasses documents which does not relate to the person in question, was counterfeit or improperly altered or obtained by way of misrepresentation.
However, it has emerged more recently that what appears to have happened in this instance is that following the Australian authorities request to Mr Uolilo’s wife[29], he took steps to obtain a police certificate as requested. He says that he attended a police station (on one of the days when he was “out of jail for the day to do some work”), made the request (apparently verbally) and paid a fee. That certificate, he says, was forwarded directly to the Australian authorities. It was not given to him. He did not lodge it. He did not see it. He thus had no knowledge that it failed to contain details of his January 2014 conviction.[30]
[29] She confirmed details of this approach in her oral testimony.
[30] Mr Uolilo’s Statutory Declaration of 13 July 2018, Applicant’s Documents, pages 79-80.
There is further documentary evidence which supports the claim that such certificates are, as a matter of routine, transmitted directly from authorities such as the Samoan police to Australian immigration posts. An email from a Visa Processing Officer, Permanent Partner Unit, Department of Immigration and Border Protection, verifies that the process in question normally takes the form of such direct transmission and that lodgment by the applicant themselves does not usually occur.[31]
[31] Ibid.
If this is the case – and this description of the process was not refuted by the Respondent when given the opportunity to do so – the weight of negative implications drawn by the Delegate in this instance, must fall to the ground.
The Original Visa Application
The Delegate did not articulate substantial concerns about the original visa application other than in relation to the matter of criminal convictions. However it emerged in cross-examination by the respondent that there were a number of statements in the original application of 26 August 2013 that are plainly incorrect. These include details of when Mr Uolilo first met his partner (Question 57); the times they lived together or separately (Question 59) and matters related to coercion in the relationship (Question 60).[32] Mr Uolilo told the Tribunal, and I accept his evidence, that the application form was completed by the uncle of his (now) wife who is a Methodist Minister in Samoa. Mr Uolilo’s recollection of the details of the completion of the form were vague. He could not remember if he was asked for details to complete answers to the numerous questions, he only recalled providing the author with details of his family members.
[32] G Documents, page 51.
The application form itself is so materially deficient in numerous respects that it cannot be taken to have been genuinely completed by Mr Uolilo with a proper knowledge and understanding of what it was all about, or the seriousness of its character. In many respects it can hardly be regarded as a genuine application. The Tribunal notes however, that this was not a point pressed by the Respondent.
The false incoming passenger card declaration
Mr Uolilo’s incoming passenger card for his arrival on 31 August 2014[33] shows quite clearly that in relation to the question asked on the card: “Do you have any criminal conviction/s”? Mr Uolilo ticked “no”. This was a false statement. Although he claims that the card was filled in by the person sitting next to him on the aeroplane,[34] there is no way of testing that assertion. In evidence Mr Uolilo was asked whether or not he could read – he replied that he could not. It is thus plausible that he asked another person to complete the form for him. In any event, responsibility for the integrity of documents submitted to Australian authorities always remains with the person who signs them – in this case, Mr Uolilo.
[33] G Documents, page 72.
[34] G Documents, page 162.
It may be argued that a false declaration on a form such as an incoming passenger card should be regarded as a rather “minor” offence. That is not the position taken by this Tribunal. It is mindful of the Tribunal’s comments in Jill Lachmaiya to the effect that:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.[35]
[35] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
Similarly, Deputy President Handley noted that: “A person’s truthfulness in the immigration process is of paramount importance.”[36]
[36] Khorn v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705 at [74].
Mr Uolilo’s escape from lawful custody
Sometime (presumably around 29/30 August 2016), Mr Uolilo walked out of Tafa’igata prison where he was being held, having served seven months of his 24 month sentence. He had no lawful authority to leave the jail. His version of the events is that:
Sometime in July/August 2014 (he cannot remember when or how) he became aware that his visa had been granted[37]. At that time he was in prison.
[37] It was granted on 9 July 2014, G Documents, page 14.
On 30 August 2014, one of those frequent days when he was allowed to leave the prison, many of which involved making payments to the Officers in charge, or involved doing work for the Officers on things like their vehicles, he left the prison and proceeded into Apia where he purchased an airline ticket to Australia which he paid for in cash.
He spent the subsequent night at home and did not return to the prison. Early the following morning he went to the airport with all the requisite documentation and boarded Virgin flight VA 96,[38] arriving in Australia on 31 August 2014.
[38] G Documents, page 72.
He has been residing here, with his family, since that date. There were, apparently, no impediments put in place by the Samoan authorities which prevented Mr Uolilo’s departure.
In various submissions Mr Uolilo describes the Samoan prison (and police) system as corrupt and he presents evidence to support such contentions, including a report detailing findings made by that country’s Ombudsman. He also details the extent to which, corruptly, he was able to come and go from the prison with the connivance of prison guards and authorities.
The Tribunal is in no position to test the veracity of any of these claims – nor is it material or indeed required to do so. It is sufficient to say that Mr Uolilo escaped or absconded from lawful custody before the expiry of his sentence and that, whatever the circumstances, he is an escaped felon.
The website of the Department of Foreign Affairs and Trade indicates that Australia does not have a formal extradition treaty with Samoa however there is before the Tribunal a document (dated 17 October 2014) from the Officer in Charge, Transnational Crime Unit/Interpol APIA addressed to someone at the Department of Home Affairs.[39] The document is headed “Escaped Prisoner” and gives details of Mr Uolilo’s escape on 30 August 2014, together with other relevant details which had apparently been requested by Australian authorities. The document itself appears to be a response to an initial request originating in Samoa which “went through the AFP” and to which some Australian authority had responded. The document concludes:
It is the Ministry stand (sic) that Mr. Uolilo be return (sic) to Samoa to serve the rest of his sentence any assistances (sic) that you could provide will be greatly appreciated.[40]
[39] The document contains several redacted elements and the addressee is not obvious. However the Tribunal was informed by the Respondent’s representative that the addressee was the Department of Home Affairs.
[40] G Documents, page 197.
The Tribunal has no evidence before it as to whether or not any Australian authorities took any action to give effect to this request. It was made several years ago and presumably could have been acted upon at any time after October 2014. Mr Uolilo was not in hiding in Australia, all his details, including his address would have been readily and easily available to any number of Australian government authorities. There were articles in the media in July 2016 referring to this case[41] but as the Tribunal was advised, he was not taken into immigration detention until 24 May 2018.
[41] G Documents, pages 73-77.
PART THREE : OTHER REASONS
The schema of the Migration Act provides that where a person has failed the character test and a visa has been refused, it may nonetheless be granted by consideration of other issues.
Section 501 of the Act provides:
The Minister may refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test.
The decision of the Minister (or his/her Delegate, or the Tribunal on appeal) is discretionary, the visa “may” or may not be granted.
In deciding whether or not to exercise this discretion, the decision maker (other than the Minister him/herself) is bound to have regard to guidelines set out in Ministerial Direction 65 (the Direction) made by the Minister under section 499 of the Act.
That Direction establishes three “primary” and five “other” considerations which must be assessed by any non-Ministerial decision-maker.
As the Tribunal made clear in Aston[42]
21. Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
[42] Re ER Aston and Y Aston and Secretary to the Department of Primary Industries [1985] AATA 306 per Davies (President), Layton (Deputy President) and Pascoe (Member).
Similarly in the Federal Court, guidance has been provided when the Court said:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[43]
[43] Gboujeh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
The Tribunal has a clear and weighty obligation to take note and be guided by the provisions of the Ministerial Directive but it has flexibility in how it interprets and what weight it assigns the various elements therein.
Primary Considerations
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[44]
[44] Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, (the Direction) part 13.
Turning first to the protection of the Australian community, it is necessary, under the terms of the Direction to consider the risk to the community posed if Mr Uolilo were to reoffend or to continue to engage in any criminal activity. After consideration of all the evidence regarding the offence committed in Samoa balanced against the various testimonials to Mr Uolilo’s character and his normal standards of behaviour (including those from Ministers of Religion[45]), together with observation of Mr Uolilo in person, the Tribunal finds that the likelihood of Mr Uolilo offending again is remote, indeed minimal. It accepts that he is not in any way a violent person and that he is also fully conscious of the consequences which would flow, for himself and his family, were he to reoffend.
[45] Reverend Kueva Tulmauga and Reverend Elder Simon Taefu at G Documents, pages 135 and 137, respectively.
The Tribunal must also consider the nature and seriousness of the offence. There is no doubt that Mr Uolilo, armed with some sort of metal pipe/object caused serious injury to a fellow worker. What evidence there is suggests that this was a spur-of-the-moment act which may, or may not, have been in self-defense. It accepts that Mr Uolilo demonstrated remorse for his actions and sought some form of reconciliation with the victim. On the other hand it recognises that the sentences of two years and of nine months indicate that the Samoan Court found this to be a serious matter attracting a not insubstantial penalty.
Nevertheless, the Tribunal, while recognising that the offence itself was serious, does not regard it as other than aberrant behaviour on the part of Mr Uolilo and not indicative of any propensity for violence or violent behaviour. If Mr Uolilo’s version of events is correct, then there may also have been an element of exculpation available.
In the judgment of the Tribunal this consideration must, by definition, weigh against Mr Uolilo but, in its estimation, not extensively so.
The best interests of the minor children cannot but weigh heavily in favour of Mr Uolilo’s application. This point is conceded by the Respondent.[46]
[46] Respondent Statement of Facts, Issues and Contentions at paragraphs 64-66.
In Mr Uolilo’s case there are four minor children of his marriage with Faatoina whose ages range from 13 months to just over six years. He is also step-father to two other children one of whom is a minor (aged 15) and the other who has just turned 18.[47]
[47] Applicant Statement of Facts, Issues and Contentions at paragraphs 38-40.
The Tribunal accepts that Mr Uolilo is a good and committed father to all of the children, that they are emotionally dependent upon him and that he cares for them deeply. His involvement in their lives is direct, regular and ongoing.
Extensive evidence was presented by way of oral testimony and written submissions all attesting to the strength and importance of these relationships and the potentially adverse impact which would occur were the children and Mr Uolilo to be separated[48]. The Tribunal has no difficulty in accepting this evidence which, in any event, was not challenged by the Respondent.
[48] Ibid at paragraphs 42-55 and G Documents, pages 113-139.
The Tribunal acknowledges that the Applicant’s submission itself drew attention to an earlier determination by it in BFXK and Minister for Immigration and Border Protection[49]regarding how this criteria needed to be applied in coming to final determinations,[50] and what was said there remains the guiding principles in this determination.
[49] [2018] AATA 866 at [106] – [110].
[50] Applicant Statement of Facts, Issues and Contentions at paragraph 36.
The expectations of the Australian community will almost always start by weighing against any applicant with a criminal record.[51] I have previously summarised my understanding of how this part of the Direction should be interpreted and applied where in BFXK and Minister for Immigration and Border Protection[52] I stated:
On the other hand I would draw attention to this Tribunal’s rulings in a number of similar matters. This is best encapsulated in a recent passage from a decision of Deputy President Boyle in Mahu v Minister for Immigration and Border Protection[53] which includes extensive citation of other Tribunal decisions.
[51] YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[65] per Robertson J
[52] [2018] AATA 866 at [122].
[53] Mahu v Minister for Immigration and Border Protection [2018] AATA 161 [72]-[78].
The Applicant also refers to KDSP and Minister for Immigration & Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:
The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.
The Tribunal also refers to the principle identified in paragraph 6.3(7) of Direction 65 which directs the decision-maker to consider:
The length of time a non-citizen has been making a positive contribution to the Australian community…
The Tribunal also notes Deputy President Forgie’s comments in Rabino and Minister for Immigration & Border Protection [2016] AATA 999 at [68] that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” That assessment should be made on the basis of the individual circumstances of each case and considered in light of the purpose of the legislation. The Tribunal agrees that that is the appropriate approach.
The Tribunal also notes Deputy President McCabe’s comments in Do and Minister for Immigration & Border Protection [2016] AATA 390 at [23]:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
A similar formulation was expressed by this Tribunal in Waits and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 1336 at [36]:
… the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
The Tribunal notes and takes into account in this decision the statements of principle set out in those cases.
As was recognised very recently by the Tribunal in Gordon v Minister for Immigration and Border Protection[54] protection of the Australian community and proper response to their expectations have not been found by the Courts to be incompatible with the exercise of mercy.
[54] [2018] AATA 39 at [153].
In Webb v O’Sullivan the Supreme Court of South Australia opined:
Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with due regard for the public interest.[55]
[55] [1952] SASR 65 at [66] per Napier CJ.
In R v Rowe the Court of Criminal Appeal in Western Australia stated:
Public concern about crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely to do so.[56]
[56] [1991] 52 A Crim R 196 at [12] per Wallace J. Citations omitted.
Finally the Tribunal notes the comment in Scott v Cameron to the effect that:
“Mercy to an individual offender is not inconsistent with recognition of the seriousness of the offending.”[57]
[57] [1980] 26 SASR 321 at [324] per White J.
Other Considerations
Having considered the “Primary” matters as required under s 13 of the Direction, the Tribunal is required to address the “Other Considerations” set out in s 14.
There is recent important authority from the Federal Court guiding the Tribunal in its approach to the assessment of these “other” considerations when examining matters related to an appeal against a decision not to revoke a visa cancellation.
In Suleiman v Minister for Immigration and Border Protection, Colvin J stated:
[23] …… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations‘……. It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally‘ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations‘. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[28] To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm — arguably even death given the consequences that flow from this mental disability if left untreated’ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight. [58]
[58] [2018] FCA 594.
This approach was recently approved and followed by the Federal Court in HSKJ v Minister for Immigration and Border Protection.[59]
[59] [2018] FCA 1013.
It is in the light of this guidance that the Tribunal turns to consider the “other” matters as set out. They are, for visa purposes:[60]
·International non-refoulement obligations;
·Impact on family members;
·Impact on victims;
·Impact on Australian business interests.
Non-refoulement obligations
[60] Direction 65 at section 12(1).
In the absence any such obligations being drawn to the attention of the Tribunal and bearing in mind the comments made above in paragraph 71 regarding extradition matters, the Tribunal is content to find that this consideration is not relevant in terms of Mr Uolilo’s application.
Impact on family members
There is an overwhelming weight of evidence that the removal of Mr Uolilo from Australia would have a devastating impact on members of his family. The Tribunal has already made comment upon this when discussing the interests of the minor children. To these must be added the impact on Mr Uolilo’s wife and his adult step-daughter. Although numerous statements of support for Mr Uolilo, referring to his good character and the nature of the relationship with his family were presented to the Tribunal, they were not capable of being tested or contested by way of cross-examination of their authors. As such the Tribunal cannot assign them the degree of weight which would, in those circumstances have been possible. Nevertheless the Tribunal notes the extent, quality and consistency of those testimonials and takes account of them.
In terms of the Applicant’s wife’s position, her Statutory Declaration[61] makes her position clear and she was examined on aspects of this. I accept what she says about the potential impact of any separation and that she would not, for the sake of the future of the minor children, return to Samoa. In any event, were she forced to do so (and as an Australian citizen she cannot be forced) she would be returning to a situation where her husband was in jail for the remainder of his sentence and, presumably, some additional sentence related to his absconding. As an Australian citizen she would not be able to access some Samoan support services and would find herself in a most unenvious position.
[61] G Documents, pages 113-118.
The adult step-daughter provided a Statutory Declaration.[62] She was available to be called as a witness but the Respondent indicated that it did not wish to cross-examine her. As such, I find it safe to take her statements at face value and to note the extent of her commitment to her step-father and half-siblings and the extent to which Mr Uolilo’s absence would impact on them and her mother.
Impact on victims
[62] G Documents, pages 119-121.
Although there is some ambiguity in terms of what the victim of Mr Uolilo’s assault wanted to do after the incident – to have the charges withdrawn or to “go along” with the police in pursuing the matter, it is clear that the only “victim” in relation to Mr Uolilo’s actions was the victim of the assault. Section 12.3 of the Direction makes it clear that consideration applies only to people who are Australians or have the right to remain in Australia indefinitely.
The Respondent makes no comment or submission on this particular issue.
Hence it can be concluded that, since there are no “victims” of Mr Uolilo’s actions to be considered by this Tribunal then the consideration weighs neither for nor against his application.
Impact on Australian business interests
The Tribunal is prepared to accept the evidence of Mr Uolilo in relation to his value as a skilled employee at Randwick Car Care.[63] The Tribunal accepts that Mr Uolilo’s skills are both of a high quality and of value to employers. It accepts the written submission from Mr Keledjion (the Director of Randwick Car Care) that the loss of Mr Uolilo’s skills would have an impact upon his business.
[63] G Documents, page 139.
On the other hand it appreciates the Respondent’s commentary on the way in which to interpret section 12.4(1) of the Direction so as to shift the emphasis away from considering the impact on individual businesses to only those of a “major project” or an “important service” in Australia.
The Tribunal is not sure that this highly restrictive interpretation should be accepted as somehow or automatically, precluding any consideration of the impact on other parts of the Australian economy or business community and prefers, on this occasion, to count this as weighing in Mr Uolilo’s favour.
CONCLUSIONS
In Contreras[64] a full bench of the Federal Court referred to the balancing of all the elements which this Tribunal is required to consider as a “calculus”. All of the disparate elements must be considered and each of them must be given appropriate weight. Although the scheme of the Act does not itself set out the relative weights to be assigned to each element, and although these weights will vary on a case-by-case basis, there are, naturally, some which weigh more heavily than others, even among those designated as “primary.”
[64] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Taken as a whole, the “other” criteria weigh marginally in favour of Mr Uolilo and would support setting aside of the non-revocation decision.
The Tribunal does not regard Mr Uolilo as any sort of threat to the Australian community or the protection of it, as such, the Tribunal would not count this element as weighing against Mr Uolilo to any significant degree.
The best interest of the minor children – which are clear, apparent and not contested by the Respondent - weigh with great force in favour of Mr Uolilo.
That leaves consideration of the expectations of the Australian community. In this regard the authorities which the Tribunal has cited above and the discussion to which it referred in BFXK would all shift the calculus in favour of setting aside the non-revocation decision.
However the sticking point is that Mr Uolilo, whatever arguments tend in his favour, is an escaped felon.
At the outset the Tribunal notes the submission of the Applicant as follows:
The Tribunal should not be concerned with whether or not it wold (sic) be appropriate for the applicant to be returned to Samoa to complete his sentence. This is a different matter dealt with through different processes.[65]
[65] Applicant’s Facts, Issues and Contentions at paragraph 65.
While the Tribunal appreciates that what is before it is not a decision immediately contingent upon the matter of any potential return of Mr Uolilo to Samoa, it nevertheless respectfully disagrees with his submission to the extent that consideration of this matter relates clearly to the expectations of the Australian community – a primary consideration.
In addition, the Tribunal notes that the issue of Mr Uolilo “evading Samoan authorities” was raised in the formal submission of the Respondent.[66]
[66] Respondent Statement of Facts, Issues and Contentions at paragraph 72.
Mr Uolilo was convicted by the Supreme Court of Samoa. That court is one which has close connections to the Australian judiciary and judicial system. In 2010 the then Chief Justice of Australia (Hon Robert French) gave a paper outlining the work done by Australian courts in support of the development of the Samoan judicial system. In that paper he noted the fact that retired Australian Federal Court judges were occasionally appointed to that court.[67] There has been specific Commonwealth legislation to affect such appointments[68] and in 2006 two State Supreme Court Judges were appointed to that court to hear particular matters.[69]
[67] French R, CJ: “Interacting with Diversity: Australian Judges and Regional Courts”, paper given at Australian Institute of International Affairs – ACT Branch, 12 March 2010 at page 8.
[68] Judicial Appointment (Western Samoa) Act 1980 (Cth). Samoa was known as “Western Samoa” until 1997.
[69] “Two Australian judges take up temporary positions in Samoa”, Radio New Zealand News 8 May 2006. >
The Tribunal notes these details because there can be no argument that the processes or verdicts of that court should not be accorded the same respect and deference as would be appropriate for any superior court in Australia.
It is no excuse to say that Mr Uolilo took the opportunity (however it may have presented itself or been arranged or contrived) to abscond from lawful custody because he missed his family and wanted to be re-united with them. The Tribunal has no doubt that such an excuse would be proffered genuinely by almost anyone with a loving family who found themselves incarcerated.
Everything else in this calculus weighed against the best interests of the minor children and would result in a decision in favour of setting aside the non-revocation.
This factor weighs to the contrary and in the opinion of the Tribunal weighs more heavily.
The Australian community expects that its courts and their verdicts should be respected, at the very least among those democratic nations where the rule of law and an independent judiciary are foundation stones of the polity. It would expect that escaped or absconded Australian felons, when apprehended, would be returned to serve lawfully imposed sentences. It would accept reciprocity in like circumstances.
The Tribunal is mindful of the fact that to return Mr Uolilo to Samoa may result in not only the possibility that his prison sentence would be extended (or a new sentence added) as a result of his absconding but that he might suffer reprisals at the hands of the prison authorities who, either through subornation or incompetence facilitated/allowed his absconding in the first instance.
This would be a tragic outcome and may be seen as some form of additional “punishment” which itself has no place in the universe of Tribunal determinations. However it may be an inevitable consequence of Mr Uolilo’s own deliberate and planned actions.
Is the threat of harm in this instance relevant?
At the outset the Tribunal notes that this matter was not raised directly by counsel for the Applicant at the Tribunal hearings, nor was it elucidated in any of the Applicant’s written submissions. However details of the prison escape were tendered in evidence by the Respondent as part of the G-Documents.[70]
[70] G Documents at pages 73-81.
Given that the Tribunal is aware that there is a threat that Mr Uolilo may suffer adverse consequences were he to be returned to Samoa – and noting that this is not an inevitable, although possible – outcome of any visa cancellation; is it incumbent upon the Tribunal to consider the potential impact of this in coming to its determination?
In short, the Tribunal believes that it is not strictly necessary as this is not a decision made under section 501(3A) or section 501CA of the Act. Nevertheless, in case the Tribunal is wrong on this point, the matter might usefully be considered albeit briefly.
The need for the Tribunal to examine this matter in cases where an applicant has fear of the consequences of deportation following the cancellation of a visa (under section 501CA of the Act) was affirmed by the Federal Court in BCR16 v Minister for Immigration and Border Protection.[71]
[71] [2017] FCAFC 96.
The risk of harm in relation to a person likely to be returned to another jurisdiction was considered by this Tribunal in QGMJ[72] where it was determined that this matter should be considered as somehow “secondary” in the calculus of criteria.[73] Although that line of reasoning was disapproved and overruled by the Federal Court, it was on the basis that such considerations were not “secondary” and that the Tribunal had misapplied the law in that regard.[74] In doing so, the Federal Court did not seek to elevate the calculation of threat of harm above other considerations, merely insisting that it must be given equal weight with other criteria.[75] In Mr Uolilo’s case, the Tribunal has sought to do just that.
[72] QGMJ v Minister for Immigration and Border Protection [2017] AATA 1537 at [104].
[73] Ibid at [105]-[106].
[74] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [40] per Colvin J. QCMJ refers to the same applicant. In the Federal Court the use of a pseudonym for the applicant was removed.
[75] A similar analysis may be found in the Federal Court’s decision in HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 in remitting to the Tribunal its original decision in HSKJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1802.
More authoritatively, the claim that potential removal to a place where the applicant might suffer some form of harm or punishment was considered by the High Court. This case similarly involved the operation of section 501(3A) of the Act and the High Court found that this line of attack on the mechanical operation of section 501(3A) was unsustainable.[76]
[76] John Falzon and Minister for Immigration and Border Protection [2018] HCA 2 at [8], [40] and [63] per Kiefel CJ, Bell, Keane and Edelman JJ.
It is by no means inevitable that the denial of a visa to Mr Uolilo at this time will result in his (forcible) repatriation or return to Samoa. As the Applicant’s submission rightly points out that is a matter for determination in another place and at another time. It is a matter where the Minister or his Delegate will have to weigh up all the competing factors, including those outlined in this determination. The only matter for this Tribunal is the calculus in relation to the cancellation of the specific visa under current consideration.
It may seem that the Tribunal is taking a particularly harsh and unsympathetic approach to a person and family who will be impacted severely by any decision to allow the non-revocation decision to remain in place, and the Tribunal itself feels deeply conflicted on this point.
Had there not been an escape from lawful custody it would have been relatively easy to set aside all other considerations and find in favour of Mr Uolilo on the basis of giving paramountcy to the best interests of the minor children, but by his own actions, Mr Uolilo has effectively compromised, if not actually removed this as an option for the Tribunal.
Respect for the rule of law and the judgments of an independent judiciary in democratic societies is too fundamental a matter for this, or any Tribunal, to put aside without there being reasons so special, unique and weighty, and public interest so compelling, that such a decision could be contemplated. In this instance such circumstances do not exist.
The Tribunal believes that this consideration would be fundamental to the expectations of the Australian community. In the calculus of considerations, this weighs most heavily and it weighs fatally against Mr Uolilo.
Decision
For the reasons stated above, the decision under review is affirmed.
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].............................................
Associate
Dated: 13 August 2018
Date of hearing: 19 July 2018 Counsel for the Applicant: Mr D Godwin, Queen's Square Chambers Solicitors for the Applicant: Mr L Prot, Brett Slater Solicitors Solicitors for the Respondent: Mr A Ray, Clayton Utz
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