IKENASIO JOE CHAN BOON and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 772

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/3558

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		IKENASIO JOE CHAN BOON

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date8 October 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
  Senior Member

IMMIGRATION – Applicant convicted and sentenced in Australia having committed sex offences on a female minor – many prior convictions for assault in New Zealand on women – Direction 41 – application to cancel visa – resident in Australia two and a half years before imprisoned – five children born in New Zealand – three children born in Australia – decision affirmed

Migration Act 1958 (Cth) s 501

Administrative Appeals Tribunal Act 1975 (Cth) s 35(2)(c)

REASONS FOR DECISION

8 October 2009 Mr John Handley, Senior Member           

1.      On 21 January 2008 the applicant was issued with a Class TY sub-class 444 Special Category (Temporary) Visa.  On 31 July 2008 he was convicted at the County Court in Melbourne of two counts of having committed an indecent act with a child under the age of 16.  He was subsequently sentenced to a cumulative period of two and a half years imprisonment.  By reason of the conviction a delegate of the Minister found that the applicant has a substantial criminal record, that he does not pass the character test (s 501 of the Migration Act 1958) (the Act) and the above visa was consequently cancelled.  The applicant applied by these proceedings to review that decision.

2.      The hearing of the review was convened in Melbourne on 1 October 2009.  Ms Kerdo appeared on behalf of the applicant and Mr Orford appeared on behalf of the Minister.  The applicant lodged a Statutory Declaration and two statements from character witnesses, Mr Rajapaske and Ms Ianetta.  Evidence was heard from the applicant and Mr Rajapaske.

3.      The applicant is presently 44 years of age having been born on 17 December 1964 in Samoa.  He moved to New Zealand in 1984 and became a citizen of that country.  In 2006 he moved to Australia and has subsequently resided here save for a four week period of absence commencing on 25 December 2007.  Prior to his arrival in Australia in 2006 he had travelled to Australia on two prior occasions, each of three days duration in May 2000 and in May 2002.  On each of his four entries into Australia the applicant was issued with a visa sub-class 444.

4.      The applicant is the father of five children who presently reside in New Zealand by reason of him having previously been engaged in three defacto marriages.  Those children are presently aged 14, 16, 17, 19 and 20 years.  Those children continue to reside in New Zealand.  The applicant has been married on one occasion only, on 28 July 2005.  There are three children of that marriage born in January 2006, February 2007 and January 2009.  All three children are boys; they were born in Australia and are presently aged three years, two years and nine months.  The applicant’s wife (although he said during the hearing that he understood that he was divorced last month upon her application) has a daughter from a previous relationship and who is presently 10 years of age.  She was the victim of the offences which gave rise to the convictions referred to above.  Those offences occurred in 2006 when she was aged seven years.  The applicant’s former wife, her daughter and their three sons all reside in rural Victoria.  They are persons who are protected by an Intervention Order issued on 2 April 2009.  The applicant is the respondent to that Order.  The terms of the Order prohibit him from committing family violence against the protected persons, contacting them personally or by telephone, text message or email, knowingly being within 100 metres of them or being within 200 metres of their current place of residence.  The Order records that the applicant, by a letter addressed to the issuing Court, expressed consent to the order without admission but to Orders which permitted him to negotiate child contact arrangements with the applicant (the wife).  The Order also records the applicant does not want any contact except via a lawyer (or unless ordered by a Court).  Liberty to respondent to apply to the Court to vary this Order. 

5. Having regard to the nature of the offence for which the applicant was convicted, an Order has been made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting publication and disclosure of the identity of the applicant’s wife, her daughter and the applicant’s three sons and their place of residence to all persons save for the representatives of the parties, the respondent Minister, members and staff of the Tribunal and employees of Auscript.  Although the applicant understood that he was divorced from his wife last month she will be identified within these Reasons as the wife and her daughter will be described as the step daughter.

6.      The circumstances giving rise to the offences were summarised by Judge Bourke in the County Court on 22 August 2008 and are found in a Transcript of his Reasons for Sentence found within the G Documents between pages 67 and 75 and relevantly at paragraph 7 as follows:

The offences against [the step daughter], who was then seven years of age, occurred whilst her mother was out and you were caring for both children.  Count 1 entailed that you used a flannel or face washer to rub the area of her vagina.  It was in the lounge room, her pants were down and legs spread apart.  You made a comment about her needing to shower better.  You also committed Count 2.  You took your penis out and placed it on her exposed vagina.  There was no penetration.

7.      An appeal against the conviction, heard by the Court of Appeal in Victoria on 11 June 2009, was dismissed.

8.      During this review the applicant denied that he committed the offences with which he was charged and subsequently convicted.  The evidence of the offences before the Court largely comprised a pre-recorded video interview of the step daughter which are summarised in the findings made by the Court of Appeal (refer pages 50-53).  The circumstances giving rise to notification to members of the Victorian police and the Department of Human Services of the conduct which gave rise to the subsequent charges against the applicant are found at pages 53 and 54 of the G Documents and are recorded also within the Reasons of the Court of Appeal.

9.      The applicant said during this review that the step daughter had been telling lies.

10.     The step daughter apparently lodged a Victim Impact Statement with the County Court and it was the subject of comment by Judge Bourke at paragraph 10 of his Reasons which are reproduced as follows:

The victim impact statement of [the step daughter] speaks of consequences affecting her school work, feelings of fear, sadness and anger and of getting nightmares.  It is appropriate that I directly quote parts of her statement.

'I worry a lot that it might happen again and that he might get away with it.  I also worry that people think I am lying.  What he did makes me feel yuck and I am sad and angry… I used to be a very happy person and now I am just sad all the time.  I think that I would not be sad any more if I knew that he would not be able to do it to me again… I worry that what happened might not make me strong enough against people that are mean to me.  I am just trying to forget what happened and hope that some day I can.'

11.     His Honour found (at paragraph 16) your offences still stand as the immoral exploitation of an innocent little girl who depended on you for protection.  It has had a significant impact on her.  One hopes, but does not know, that it will pass.

12.     At the Plea Hearing the Court had access to Victim Impact Statements lodged by the step daughter and the wife, notes of the police informant concerning an alleged reconciliation subsequent to the complaint being lodged, a resume and employment history and a letter of character evidence from Bishop Setu Fuataga.  Only the employment history and the Bishop’s letter were lodged in these proceedings.

13.     His Honour reached certain conclusions concerning the character of the applicant which are found at paragraphs 13 and 14 of his Reasons (pages 70 and 71).

14. In the context of an application made under s 464ZF(2) of the Crimes Act 1958 (Vic) (that a saliva sample be taken from the applicant and its analysis be preserved in a DNA data base) His Honour concluded at paragraph 32:

It is the nature of the offending and the difficulty of detection that persuades me that the order should be made.  I am not convinced at all that this man is a potential (indistinct).  I think he is fundamentally a good man.  I think he is probably fundamentally a good man, as much as one can know about that.

15.     I note from His Honour’s Sentencing Remarks that he was of the belief that the applicant did not have prior convictions.  The applicant does have convictions for serious offences in New Zealand, predominantly being assaults on his former defacto partners.  I assume that His Honour was either not aware of those convictions, or he was not permitted to take them into account or they could not be proved.  A summary of those offences is found within the G Documents, there was evidence by the applicant concerning the circumstances giving rise to each of those offences and I do intend to take those matters into account later in these Reasons.

16.     I note also that His Honour found that the applicant did have realistic prospects for rehabilitation and he was of otherwise of good character.  I assume that those findings were made by reason of the plea put on behalf of the applicant during the sentencing hearing because there is nothing from the Reasons for Sentence which would indicate that there were any documents before the Court other than those referred to above.  The statement of Bishop Fuataga is found at page 86 of the G Documents and is reproduced in its entirety as follows: 

My name is Bishop Setu Fautaga.  I am writing this letter to let you know that Joe Ikanasio Chan Boon was a member of our Church.  I am his Bisho (sic) and I have known him for more than 5 years and he is a good member.  I have no problem with him at all.

I trust him and rely to him to do things in our church.  I still look forward to working with him more often.

17.     The applicant apparently gave evidence during the Sentencing Hearing but it would appear that it was mainly concerned with attempts at reconciliation with his wife and step daughter.

18.     Whilst I acknowledge the findings made by Judge Bourke with respect to the character of the applicant, I am not bound by them.  The conclusions that have b een reached later in these Reasons arise out of having observed and heard the applicant give his evidence over a period of approximately three hours and by reason of the contents of documents found within the materials lodged by the respondent.

DIRECTION NO. 41

19.     Section 499 of the Act provides that the Minister may give written directions concerning the functions and powers under the Act and the manner in which those powers are to be exercised.  If such a direction is given there must be compliance with it.  The Tribunal is bound by the contents of any such directions.

20.     Relevantly, Direction No 41 was issued by the Minister on 3 June 2009 and the effect of it commenced on 15 June 2009.  The decision under review in these proceedings and the hearing of the review both occurred after 15 June 2009 and accordingly I propose to follow the relevant provisions of the direction.

21.     Having regard to Direction 41 and to s 501 of the Act I am satisfied that the applicant does not satisfy the character test (refer sub-section (6)) because he has a substantial criminal record (refer sub-section (7)) having been sentenced to a term of imprisonment of 12 months or more.

22.     In circumstances where a person does not pass the character test a discretion remains available to determine whether, despite having a substantial criminal record, the decision to cancel or refuse a visa should be made.  That discretion is found at Part B of Direction 41 commencing at paragraph 8.

23.     Relevantly, this part includes a reference to primary considerations which must be considered (refer paragraph 10).  Paragraph 11 permits consideration of other considerations which are not primary and which are to be given lesser weight than the primary considerations.

24.     At paragraph 10 (1) the primary considerations include the protection of the Australian community from serious criminal and other harmful conduct, particularly crimes involving violence, whether the person was a minor when they began living in Australia, the length of time that the person has ordinarily been a resident of Australia prior to engaging in criminal activity and whether there are any relevant international obligations (in the present case the only relevant obligation is the best interest of the child described in the Convention on the Rights of the Child.

25.     Paragraph 10.1 defines the ambit of the enquiry with respect to the primary consideration of protection of the Australian community.  It directs that consideration be given to an examination of the seriousness and nature of any relevant conduct and the risk that such conduct may be repeated.  It especially makes reference to crimes of violence or the threat of violence being of special concern especially if committed against vulnerable persons (such as minors).  Conduct of that type is regarded as being especially abhorrent to the whole community (paragraph 10.1.1).  Paragraph 10.1 also directs that the Government's objectives, found at paragraph 5, be considered.

26.     At paragraph 10.1.1 (2) examples of offences which are considered to be serious are all offences perpetrated against a child (particularly sexually based offences) and other sexually based offences.

27.     The applicant has been found guilty of having committed two counts of an indecent act with a child under the age of 16.  The particular conduct giving rise to those convictions is recorded earlier.  Those offences are sexually based, they were committed upon a vulnerable person, being a minor, by a male adult in a position of power and authority.  The conduct of the applicant was disgusting and repulsive.  They are also crimes of violence.

28.     The applicant was sentenced to a total of two and a half years imprisonment with a non parole period of 12 months.  That latter period has expired.  He is presently in immigration detention pending the conclusion of this review.  The sentencing judge was obviously influenced by both the seriousness of the crime but also by the material before him which permitted him to make conclusions with respect to the applicant's character (refer earlier).  There is nothing which would indicate that there were any pre-sentence or psychological reports or parole assessments.  There were Victim Impact Statements from both the step daughter and the wife and of significance – at least to me – was the finding by the Court that the applicant did not have prior convictions.  A summary of the applicant's convictions in New Zealand is found at page 29 of the G Documents.  It reveals that the applicant was convicted on five occasions between 1993 and 2008 of assault, all of which were on his former defacto partners.  That is to say, the applicant being a person who was a professional heavyweight boxer, assaulted women.  Those offences occurred in 1993, 1995, 1997, 2001 and 2008.  The applicant also has convictions for common assault and disorderly behaviour in New Zealand in 1997 and 1999.  He has two convictions for driving a motor vehicle with an elevated blood alcohol content in 2004 and 2008 and two convictions associated with him driving a taxi in January 1996.

29.     The circumstances of the convictions with respect to the assault by him upon women were examined at length during the hearing of this review.  The applicant did not acknowledge the seriousness of his conduct nor accept any responsibility for his behaviour.  Indeed on one occasion he said that he regarded these offences as being minor.

30.     The applicant said that the first conviction arose when he was attempting to protect himself against the approaches of one of his former defacto wives.  He said he pleaded guilty to the charge on the advice of his lawyer.  The second offence occurred when he was attempting to restrain his defacto wife's brother who had broken into their home and was in the process of stealing items apparently to finance a drug habit.  He said his defacto wife got in the way and she was assaulted.  The third and fifth convictions arose out of the applicant being found by his defacto wife in the presence of another woman he having apparently spent the previous evening with that person.  The applicant said that the assaults occurred when he attempted to restrain his defacto wife from assaulting the other woman and on the second occasion his defacto wife was assaulted when he attempted to restrain her from damaging domestic property which was apparently her reaction to finding him in the presence of the other woman.

31.     The last assault conviction in New Zealand occurred during a four week absence from Australia in January 2008.  The applicant said that he found his first two children suffering from nappy rash his wife was absent and believed to be under the influence of alcohol at another location.  The applicant said that the assault then was committed on his wife (being the mother of the step daughter) by him biting her finger which occurred in the course of her assaulting him.

32.     The applicant acknowledged that he was under the influence of alcohol during the occasion of the third and the fifth assaults.

33.     The cursory manner in which the applicant viewed the convictions for assaults on women and his continuing denial of the offences committed on his step daughter are of serious concern and weigh heavily against him.  He has been found guilty by a jury of having committed the offences upon his step daughter.  The jury heard evidence from her and from her mother and it would appear (at least from the Reasons for Decision of the Full Court) that there was evidence also before the County Court from relevant police, protection workers and health care professionals.  There was an abundance of evidence pointing to the offences having been committed.

34.     The applicant has demonstrated a history of violence against females mainly adults but also an infant.  The conviction for assault in New Zealand in 1997 was on a male person and it would appear from the applicant's description to have occurred arising out of a road rage type incident.

35.     Although not strictly relevant under this part, the applicant's failure on 21 January 2008 to disclose his prior convictions, the most recent having occurred four days earlier, does him no credit (refer pages 29 and 32).

36.     Paragraph 10.1.2 is concerned with whether the prior conduct of the applicant may be repeated.  In the context of whether the applicant should be permitted to remain in Australia the risk, if any, of him re-offending, is a very relevant consideration.

37.     Between 1993 and 2008 the applicant has been convicted on 14 occasions 10 of which were for crimes of violence.  Nine of those 10 convictions for violence were on women (including the two offences committed upon the step daughter).  One conviction arose out of the assault on his wife in January 2008.

38.     There is nothing which points to the applicant abstaining from acts of violence indeed there is a consistent pattern of offences of that type occurring.  There is no evidence that he has undertaken any rehabilitation nor is there anything which points to a reduction in the risk of him re-offending.  The applicant completed an anger management course before he was imprisoned but the details of it are not known.  He said he would guarantee that he would not reoffend and he is now totally changed.

39.     On balance I have concluded that whilst it is not known whether the applicant will re-offend in the future, unhappily I have a sense of pessimism that by reason of his prior conduct and the repetition of it over a period of many years there is nothing which would permit me to conclude with any degree of confidence that the applicant is not likely to re-offend.  I am also particularly mindful that the majority of the offences of violence committed by the applicant had been upon women, he being a large powerful man having been trained (by reason of his boxing qualifications) to be able to fight.  The Courts in New Zealand – also took a dim view of the applicant.  Whilst the penalties upon conviction progressively increased, he did not cease to offend.

40.     I would in the circumstances place considerable weight against the applicant because I fear the risk of recidivism.

41.     Paragraph 10.2 is not relevant because it is concerned with whether an applicant was a minor when he began living in Australia.

42.     Paragraph 10.3 is relevant because it requires consideration of the period of time that the person has been an ordinary resident of Australia.

43.     Save for two limited periods of travel to Australia in 2000 and 2002 the applicant has ordinarily been a resident of Australia since January 2006 but he has been in prison since July 2008.  Accordingly he has resided in Australia outside a custodial environment for two and a half years only.  Apart from his wife from whom he is now divorced, his step daughter against whom he offended and his three sons, one of which he has never seen, the applicant has no ties to Australia.  Previously he had been a resident of New Zealand for more than 20 years and before that he had been a resident in Samoa, his birthplace for more than 20 years.

44.     In the circumstances I cannot find that the applicant has any significant ties to Australia.

45.     Paragraph 10.4 is concerned with any international obligations that Australia might have and a relevance of course is its obligation to uphold the principles of the Conventions of the Rights of the Child.

46.     There are nine relevant children whose rights and best interests should be considered.

47.     Five of those children reside in New Zealand and were born out of three prior defacto relationships in which the applicant was a party.  Those children are aged between 14 and 20 years and it is understood that they reside with their respective mothers in New Zealand.  The applicant said that he has contact with them from time to time by letter or by telephone.

48.     Three children were born of the relationship between the applicant and his wife.  The youngest child was born in January 2006 and would have been approximately two and a half years of age when the applicant was sentenced.  The second child was born in February 2007 and would have been about 16 months of age when the applicant was sentenced.  The third child was born in January 2009 after the applicant was sentenced.  The applicant said he has not ever seen him or held him or have a photograph of him.  The only reason he knows of his birth was he was forwarded a letter by the Registrar Births, Deaths and Marriages asking him to confirm that he was the father.

49.     Of course it would be in the best interests of his three sons to have a loving caring relationship with both parents, being the applicant and his wife but that will not occur, at least, in the immediate future.  In addition to the Intervention Order presently in force prohibiting any communication between the applicant and his children, the parents are now divorced and any relationship would occur without both parents being present.  The applicant said that he would want to resume his relationship with the children but said that he would want to prove himself whilst he is on parole and when that period of time expires he will then apply to the Court to vary or be relieved of the obligations under the Intervention Order.

50.     The period of parole is not known but I would anticipate, having regard to the total duration of sentence that it will be many months before the applicant can be relieved of his parole obligations.

51.     On balance, I would have thought it would have been in the interests of the applicant's three sons – especially the two boys that were born before the applicant was imprisoned – to have a stable and contented relationship in their new rural location.  The contact with the applicant prior to his imprisonment would have been very limited not only because of their respective ages but because there was a period of separation between the applicant and his wife (after the offences were committed on the step daughter and before imprisonment) during which the sons were in her custody.

52.     I am curious to know why the applicant has chosen not to apply to vary the Intervention Order to at least have permission to write to the children or send them birthday and Christmas cards.  His preference to wait until the expiration of the parole period to initiate a variation to the Intervention Order is puzzling.  Relevant Australian authorities have not separated the applicant's children – both here and in New Zealand – against their will (refer Article 9).  The children in New Zealand are separated from the applicant by his choice to move to Australia.  The children of his relationship with his former wife are separated by a combination of his period of imprisonment and by the Intervention Order which he has chosen not to challenge or apply to vary.

53.     The remaining child of relevance is of course the step daughter.  She is a person who has been abused by the applicant and for which he has been convicted.  In a letter written by the applicant on 5 March 2009 (G Documents, pp76‑77) the applicant recorded that he has effected reconciliation with his step daughter.  In evidence he said that we had talked about it, we reached agreement about it before I went to prison in July 2008.  The applicant also said that his step daughter had sent him Christmas and birthday cards in 2006.

54.     I have considerable doubt whether any reconciliation has occurred between the applicant and his step daughter.  The contents of her recorded cross examination as found within the Reasons of the Full Court and the Decision of the Sentencing Judge would indicate that the lack of trust then being exhibited by the step daughter and her sense of insecurity and fear of the applicant is inconsistent with reconciliation as alleged.

55.     On balance therefore and whilst acknowledging that paragraph 10.4.1 (2) records that the best interests of a child under the age of 18 are not primary considerations, I am satisfied that it would be in the interests of the applicant's three sons in Australia to have contact with him and continuing separation may be to their detriment.  I think that weight should be placed in favour of the applicant by him being permitted to ultimately have a relationship with his sons which at least for practical purposes would best be exercised in Australia certainly whilst they are infants.  There is nothing however that would satisfy me that it would be in the interests of the step daughter to have a relationship with the applicant and I think that her best interests are probably achieved by support and reassurance by other persons around her who can offer stability and comfort.

56.     The remaining international obligations recorded at paragraph 10.4.2 and 10.4.3 have no relevance to these proceedings.

57.     Paragraph 11 is concerned with other considerations which have a lesser value or weight of those of the primary considerations discussed in paragraph 10.

58.     In the event of the applicant returning to New Zealand he would not be faced with language difficulties.  He has trade and work qualifications which would readily permit him to obtain employment, especially having licences to drive buses, trucks and forklifts.  He has five children who reside in New Zealand together with an adult sister.  He lived in that country for more than 20 years and would be familiar with it.  He has been away from New Zealand for less than four years.  Apart from suffering diabetes which would appear to be under control, there are no reasons relevant to the applicant's health which would prohibit him from either returning to New Zealand or obtaining adequate care.

59.     The applicant was not formally advised about conduct which might bring him within the character provisions of the Act.  This, perhaps, attributes some minimal weight but equally, persons of good character do not commit the offences for which the applicant was convicted.

60.     Of course the applicant would suffer hardship by being remote from his three children in Australia but two of those three children had very limited contact with him before his imprisonment and the third child has not ever had any contact with him.  It would of course be preferable for the applicant and the three boys to be reunited but that will not occur in the short term, at least during the currency of the Intervention Order.  There is no reason why the children, when older, could not travel to New Zealand to be with the applicant.

61.     The applicant's Bishop, who provided a written reference to the County Court was prohibited by the hierarchy of his church of giving the applicant support in this review (despite the applicant having been a missionary of his church and his knowledge of the Bible giving him strength to move on in life).  Ms Ianetta, who, having recorded in her statement that she intended to marry the applicant, did not give evidence.  It was understood that she had been hyperventilating and was unable to attend the Tribunal or give character evidence by telephone.  Mr Rajapakse did not attend the hearing.  When he was located he gave evidence by telephone which comprised his recollection of the applicant when they lived in a share house, his disbelief that the applicant committed the offence on his step daughter and his fear of the applicant's wife, who he met on one occasion.

conclusion

62.     Whilst some weight, in favour of the applicant, should be found against paragraph 10.4.1 (and only with respect to his three sons in Australia), the weight of the remaining primary considerations is so overwhelming that I have concluded the permission given to the applicant, evident by the visa which was issued to him, should be revoked.

63.     In all of the circumstances the decision under review will be affirmed.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Date of Hearing  1 October 2008
Date of Decision  8 October 2008
Solicitor for the Applicant          Ms P Kerdo
Solicitor for the Respondent     Mr A Orford