Inamata and Minister for Immigration and Citizenship
[2008] AATA 695
•8 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 695
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2255
GENERAL ADMINISTRATIVE DIVISION )
Re Wally INAMATA
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date8 August 2008
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]…………………...
Professor GD Walker
Deputy President
CATCHWORDS - IMMIGRATION – visa-ex – applicant concedes substantial criminal record - whether tribunal should exercise discretion to cancel applicant’s visa – protection and expectations of the community considered – best interests of the children considered – other considerations – protection and expectations of the community outweigh the best interests of the child and other considerations in this case – decision under review is affirmed.
RELEVANT ACT/S:
Migration Act 1958 (Cth) (the Act): ss 200, 499, 501
Migration Reform Act 1992 (Cth) (the Reform Act):
CITATIONS
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (Sales I)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 (Sales III)
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Re Gardener and Australian Prudential Regulation Authority [2007] AATA 2041
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Al-Kateb v Godwin (2004) 219 CLR 562
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
OTHER AUTHORITIES
Direction No 21
Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations): r 4, 17
REASONS FOR DECISION
8 August 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Wally Inamata was born in New Zealand in September 1974 and is a citizen of that country.
2. He first arrived in Australia on 26 July 1986 aged 12, and spent 15 months here, residing with aunts and uncles, before going back to New Zealand in October 1987. He returned to Australia on 10 November 1991 at the age of 17. Apart from a short visit to New Zealand in 1994, he has lived in Australia permanently since 1991, holding a TY subclass 444 special category visa.
3. His Australian criminal record begins in October 1987 in Parramatta Children’s Court when he was placed under 12 months’ control orders in respect of charges including stealing, breaking, entering and stealing, and possessing implements to enter and drive a conveyance. The orders were subject to a condition that they could be discharged if the applicant returned to New Zealand (G pp56-57). Four days later he did in fact depart for New Zealand (G p29).
4. While back in New Zealand he appeared before the courts on two occasions and was placed on community service orders on 11 charges, mainly dealing with burglary and theft.
5. After his return to Australia, his next appearance before the courts was in January 1992, and thereafter he incurred numerous convictions, including the following:
Date of conviction
Offence and Sentence
18 November 2005
Assault occasioning actual bodily harm: 6 months imprisonment
19 April 2002
Robbery while armed with a dangerous weapon: 8 years and 6 months imprisonment (non-parole 5 years)
19 April 2002
Larceny of motor vehicle: 1 year and 6 months imprisonment
19 May 2000
Robbery: 2 years imprisonment
19 May 2000
Escape from lawful custody: 18 months imprisonment (non parole 6 months)
27 April 1999
Breach of parole: 1 year and 11 months imprisonment
22 April 1999
Robbery in company: 3 years 11 months 24 days imprisonment (non-parole 1 year 361 days)
5 December 1994
Demand money with menaces – 6 counts: 18 months' imprisonment
5 December 1994
Robbery in company: 18 months imprisonment
5 December 1994
Robbery with violence: 18 months imprisonment
5 December 1994
Robbery while armed: 6 years imprisonment (18 months non-parole)
18 June 1993
Unlicensed driver (fine default): 48 hours imprisonment
18 June 1993
Assault police (recognisance and supervision)
28 October 1992
Exceeding speed limit (fine default): 7 days imprisonment
28 October 1992
Unlicensed driver (fine default): 48 hours imprisonment
29 January 1992
Drive special range PCA (fine default): 48 hours imprisonment
29 January 1992
Statement of false name and address (fine default): 24 hours imprisonment
29 January 1992
Unlicensed driver (fine default): 24 hours imprisonment
6. The applicant was earlier considered for deportation under s 200 of the Migration Act 1958 (Cth) (the Act). On 21 December 1995, a delegate of the minister decided not to order deportation, but a warning letter dated 12 January 1996 was sent to the applicant stating that his convictions had made him liable to deportation. The letter warned him that while the delegate had decided not to order deportation at that time, any further convictions would lead to the matter being reconsidered and would weigh heavily against him (T p32).
7. The applicant was convicted of robbery on 8 May 1996, but as he did not receive a custodial sentence, deportation was not reconsidered (T p33).
8. After being convicted of robbery in company on 22 April 1999 and being sentenced to four-year imprisonment, the applicant escaped on 24 August 1999 and re-offended.
9. While the applicant was in prison in March 2002, his TY subclass 444 special category visa was cancelled pursuant to s 501 of the Act. On 11 April 2007, however, he was informed that his case had been identified as similar to Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (Sales I) and that he would thereafter be treated as continuing to hold a TY 444 special category visa (G p34).
10. A notice of intention to reconsider cancellation under s 501 was sent to the applicant at Lithgow Correctional Centre on 9 May 2007 (T pp37-45). He acknowledged receiving the notice at Junee Correctional Centre on 18 May 2007 (G p46). By letter dated 15 May 2008 the applicant was informed that a delegate of the minister had decided to cancel his visa pursuant to s 501(2) of the Act (G pp1-3).
11. At the hearing, the applicant was represented by Mr Paul Cutler of counsel, instructed by Ms Kim Hunter, solicitor of Migration Professionals, while Mr Leonard Leerdam, solicitor, of DLA Phillips Fox represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person, as did his brother Mr Taina Mata. His fiancée Ms Tara-Lee Sullivan and the Junee Correctional Centre prison chaplain Mr Chris Turk both gave oral evidence by telephone.
Issues
12. The issues in this matter are:
(i)Whether the applicant's visa was validly cancelled under s 501 of the Act; and
(ii)As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
13. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
14. “Substantial criminal record “ is defined in s 501(7)
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
15. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
17. In his evidence in chief the applicant adopted his written statement (Exhibit A2), in which he described how he had been a rebellious child as his father had died when he was aged seven, depriving him of a male role model. He looked after himself physically and financially from an early age.
18. In his current sentence, he had been in jail for eight and a half years and had spent much time reflecting on his actions and how they had affected his family and society in general. He had undertaken countless rehabilitation courses to help him to change his violent and offending behaviour. He now realised that there are people who can help and support him. When he was young and independent it had been hard for him to accept or ask for help.
19. He continued:
I don’t want to lie to you – I have made a lot of mistakes in and out of jail. I am not refuting any of my charges. I just want to let you know I am a different person standing before all of you today. I am an adult now and have responsibilities and cannot continue my childish behaviour.
20. He had maintained regular contact with his family through telephone calls, letters and visits and had been in regular contact with the psychologists and drug and alcohol counsellors in the various jails he had been in. He had enrolled in, and completed, a fathering course called “Hey Dad”. He wanted to become a more suitable role model for his son, and that was one of the reasons he wanted to stay in Australia. He was willing to undertake further courses with supervision upon his release and to contribute his positive potential back into society.
21. He had been away from his family and friends for many years and owed it to them to show them that he had changed and to prove to them that he had changed his violent and offending behaviour. He was sincerely remorseful for his crimes and hoped to be a productive member of the community.
22. His fiancée had exerted a positive influence on him. She had put her life on hold to give him a new outlook and he would forever be indebted to her for her support and time. He also wanted to acknowledge the great work that the “Kairos” Christian prison fellowship had done for him by introducing him to God.
23. In oral evidence he said that his fiancée, Tara-Lee Sullivan, had done many things for him and had given him a chance, although there were other people out there who were interested in her. She had applied to Aboriginal Housing for a loan and they planned to live together and have a family. He planned to live with Tara in Wagga Wagga, where he had an offer of employment on the railways, because he considered that Sydney was a temptation and he wanted to move away.
24. He did not think he still had a drugs and alcohol problem, but the only way to prove it was outside, because he might change his mind out there (transcript 29 July 2008 (ts) p4).
25. He had undertaken the “Hey Dad” parenting course (ts p4). It was hard for him to say he was a father, because he had let his son down. He had not often seen him, as he lives far from Junee with the applicant’s brother.
26. People around him say that he has changed. When he was younger he did not care, and did not want to listen. Now he was sorry for his offences but could not turn time backwards. He had hurt people and his family but intended to turn over a new leaf and prove after being released that he had changed.
27. In cross-examination he said that he had received all his schooling in New Zealand and that after returning to Australia in 1991, he had worked as a motor cycle mechanic with his brother, living with his sister when she was here.
28. He had entered into a relationship with Nicole Batista in 1981, which became a de facto arrangement in 1993 or 1994, although he had lived with her from mid- or late-1992. His son Jordan was born on 23 January 1993.
29. Nicole had ejected him from the house in 1993 because he had stayed out late at night. After that he lived with a woman named Anastasia who also took care of his son, and was with her for seven or eight months until his arrest on 30 July 1994. They were both living on unemployment benefits at that time, and he used his payments for his son (ts p9).
30. At his interview on 16 March 1995, he stated that he had committed his four most recent offences over a two-month period in order to obtain money to support his son (G p131). He conceded in cross-examination, however, that he had also used the proceeds of those crimes to support his own drug and alcohol habits (ts pp9-10). He agreed that he had committed offences while on bail in some cases but did not want to dwell on the past. He had not heeded the warning then, but he was older now.
31. At his sentencing hearing on 5 December 1994, Viney J had noted that the applicant had approached the Catholic prison chaplain, Father Maurihan, who had expressed hopes for his rehabilitation, as had a psychologist, Mr Taylor (G pp139-141).
32. He conceded, however, that his claims that he was reformed and would not re-offend were not genuine and were made for the purposes of obtaining support at the sentencing hearing (ts p12), but said the situation was different now because this time he had not asked for help; instead, people had come to him offering help. He was also older now.
33. But he could not recall the plans he had described at his interview on 31 October 1995 (G pp104-105) or his claim that “He knew that he had to prove himself on his release and show that he could keep away from drugs” (G p105). Nor could he recall expressing remorse to the parole officer, Mr RA Cosman, at the interview with him on or about 17 October 1995, following which Mr Cosman reported that “He appears genuine in his remorse for these crimes, and accepts responsibility” (G p109).
34. After his release on parole, he had obtained employment as a motor cycle mechanic with his brother, but had quit after five or six months because he did not like taking orders. Two months after his release, he was convicted of robbery and given a three-year bond and a fine, in relation to an earlier offence. After leaving his brother’s employ in August 1996, he lived with Anastasia at Bankstown, where Anastasia took care of his son. He remained with her for about 18 months until taken into custody in 1997. At that stage his son was aged three or four.
35. He had understood the effect of the deportation warning he received in January 1996 but it had fallen on deaf ears at that time and he had not thought about it when committing his later offences.
36. It was not he who had planned the ANZ Bank robbery in August 1997, but he had instigated the Wetherill Park St George Bank robbery after his escape from Long Bay MTC on 4 July 1999 (ts p22).
37. As regards his offences while in custody (G p55), he said that he had been a normal inmate in the sense that he had behaved badly, including by being involved in fighting. The possession of an article for use in escape for which he was punished on 7 August 2002 related to a bed sheet that had been turned into a rope. He had pleaded guilty to the charge because he was tired of being moved around, but said it was not his rope, although his answers on that subject were less than responsive (ts p23).
38. Asked whether he would re-offend if allowed to remain in Australia, he replied that he said he had said that he needed to prove it and wanted a chance to do so, and was not saying (but did not complete the sentence) (ts p23).
39. He had been introduced to Tara-Lee Sullivan on the telephone while he was in jail by the wife of a friend and she had subsequently come to see him in early June 2007. As the department had contacted him in May 2007 at Junee informing him of possible visa cancellation (G p151) he was asked if he had proposed to her because of that notice. He replied that the thought did not cross his mind.
40. Asked about his statement to the case officer on 30 July 2007 (G p149) that he did not mind going home, he replied that he had said that out of frustration, and that at that stage he did not mind returning to New Zealand, even though he was by that time engaged to Ms Sullivan. He had been frustrated because no-one had wanted to help him and he had recently lost his brother (ts p26).
Supporting witnesses
41. The applicant’s brother Mr Taina Mata gave oral evidence. He adopted his two letters dated 22 July and 23 July 2008 (Exhibit A3) in which he said that the applicant is sincerely remorseful and would not re-offend if allowed to remain in Australia. He had undertaken beneficial rehabilitation courses and had matured. He should also be allowed to be a father to his son and to remain near his family so that he could become a benefit to society instead of the burden he previously had been.
42. As regards his offences, Mr Mata wrote:
…
He made choices that with hindsight were not appropriate, nevertheless they were made. These crimes he committed are not in dispute, he did in fact do them but, at that time he was a different person to the one you see before you now. …
43. He had become a more affectionate person, not only with his fiancée but with the extended family. The applicant’s son Jordan is living with Mr Mata and his family but over the years has kept in contact with his father and desperately wants a life with him.
44. Jordan had been living with Mr Mata since he was aged eight or 10, and is now 15. Mr Mata would like the applicant to stay with him if released but knows that he has other plans. He had remained in regular contact with the applicant while he was in jail and believed that he had changed, and was not as hostile as he used to be. He had prospects of employment in the country and had undertaken an alcohol course, and would not return to drug and alcohol abuse when released. He would not re-offend as he had grown up and matured.
45. In cross-examination, Mr Mata conceded that the prison records at Junee (G p157) showed that he had not in fact visited the applicant, but added that he had visited him at Grafton, although it was a long time ago. Since then contact had mainly been by telephone and Mr Mata’s letters (Exhibit A3) have been based on those telephone conversations. He had not had any discussions with psychologists or parole officers and they were expressions of his own opinions.
46. When it was pointed out to Mr Mata that the applicant had expressed remorse and regret to the Catholic chaplain in 1995 but had admitted that those expressions had not been genuine, he replied that he did not change his assessment because we all make mistakes, he was young and silly at the time and people can change.
47. The applicant's fiancée Ms Tara-Lee Sullivan, in her oral evidence by telephone, adopted her letter of 14 July 2008 (Exhibit A4), in which she wrote that she and the applicant had been together for 13 months, having become engaged on 21 June 2007:
…
I am a young indigenous single mother of a 2-year-old girl. Usually, I don’t date anyone in jail, but after getting to meet and know Wally as a friend, I developed feelings for him and our friendship grew into a relationship. In the time I’ve gotten to know Wally, I started to see the change in his character and personality.
…
48. He had become more assertive, considerate and responsible and was a positive male figure for her two year-old daughter, who loves him.
49. She has applied to the Aboriginal Housing Department for a house in preparation for his release and they plan to marry and raise a family together. The applicant has also been enquiring about employment in the Wagga Wagga area, such as in labouring and construction.
50. She believes he has changed and is sincerely remorseful about his offending behaviour.
51. In cross-examination Ms Sullivan described how she had met the applicant in jail and said that she did not know in detail what offences he had committed, but would not want anyone aggressive near her daughter or her family.
52. She knew that he had previously been warned about deportation but had not known about the notice of intention to cancel his visa until recently, although she knew there was some sort of problem that might be a hurdle they would have to deal with.
53. If the applicant's visa were cancelled, she was quite emphatic that she would move to New Zealand with her daughter, but preferred not to leave her family at Wilcannia.
54. Asked about the applicant’s claim that others were interested in her, she said she had no interest in any other men and would not have wasted her pension on visiting him if she had been. She was not in a relationship with her daughter’s father, as her daughter was the product of “a one-night stand”. She believed the applicant had changed because he could now talk about his problems a great deal more and she could tell that he had undertaken rehabilitation courses. He was not aggressive. She had become engaged to him because she wanted her daughter to see her with a normal life, as her own parents had not been married.
55. Mr Chris Turk, a Baptist minister, is a member of the chaplaincy team at Junee Correctional Centre. In his oral evidence by telephone he adopted his letter of 14 July 2008 (Exhibit A5), in which he stated that he had known the applicant in his role as chaplain, especially since he completed the four-day Kairos course in April 2008. Kairos is a Christian-based course that helps inmates with issues of self-esteem, forgiveness, choices and developing their potential. Since completing the course, the applicant had been a faithful attendee in the weekly Kairos journey program and had benefited from it.
56. The applicant had recently completed a short “Hey Dad” course to improve his fathering skills. He is keen to become a good father and communicate well with his son and help him develop, as he does not wish his son to follow the same path as he did. He had also completed the “Getting Smart” program and the “Smart Recovery” program, which focus on self-empowerment to overcome substance abuse and criminal activity.
57. In his oral evidence, Mr Turk said that the applicant had a more positive attitude to the future. He wished to return to his family and cultural roots. He had never previously asked for help, but had done so in the last two weeks.
58. The applicant realised that he had been “a blight” in the past. His progress had yet to be put to the test, but the fact that he could have been more violent while in jail than he had been was a result of the courses he had undertaken. Nevertheless, his rehabilitation still had to be tested.
59. The “Hey Dad” program he had undertaken was a one-morning course only, but Mr Turk hoped he would undertake the four-day course, as so far he had only made a beginning.
60. Asked about the applicant's recidivism risk, Mr Turk said it was “a hard one”, but that he had reflected for eight and a half years and had tried to do as much as he could by undertaking courses. His son and fiancée provided him with motivation. It would be necessary to discuss the matter with the psychologists as well. The psychological assessments relied on at the December 1994 sentencing hearing (G pp140-141) were a good summary, and the applicant today was in the same position or a better position.
61. One had to look at the courses he had undertaken, his conduct, his relationship with Tara and with other Islanders who wanted to change. That he had committed other crimes while in relationships was serious, but it was necessary to look at the other changes in his life and give him a second chance. His admission that he had not been genuine in his claims of remorse in 1995 was troubling, but Mr Turk would hope that he had moved on. He was 20 then, but was now 33 and suffered less from peer pressure. His spirits were more buoyant.
Applicant’s submissions
62. As regards the exercise of the discretion, Mr Cutler submitted that many of the matters that were raised dated from the mid-1990s. He was older and wiser now, and Mr Turk had said he now has a better self-image and is less responsive to peer pressure. Tara’s devotion to him should weigh heavily against visa cancellation. He had been separated from his son for a long time, but undertook the “Hey Dad” course and was concerned about Jordan's welfare. If released he could live with his brother. He concedes that Sydney is a temptation for him and that his drugs and alcohol rehabilitation needs to be tested, but for that reason he wished to find employment at Wagga Wagga or in the country.
63. The past eight years had been an opportunity to contemplate the errors of his ways. Admittedly, he had previously claimed to have changed, but the past is past. He should be believed, and on that basis the risk of recidivism was not high. His family and fiancée are all interested in him, and they are all Australian citizens.
64. As regards the legal issue, the reasons of Gyles and Graham JJ in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 (Sales III) showed that s 501 of the Act was the wrong power under which to cancel his visa, as it applied only if a visa had been granted to a person. The appellant in Sales III had obtained a visa on the basis of being an absorbed person, and consequently had not been “granted” a visa. The applicant in this case was not in the category of an absorbed person but his special category 444 visa was analogous to that class. The applicant was in Australia before the legislative change in September 1994 that required New Zealand citizens to hold a visa. He was “taken to be granted” the necessary visa.
65. Further, as that visa had purportedly been cancelled on 7 March 2002, it could not be cancelled again in 2008. If it had not been cancelled in 2002, it could not now be cancelled because it was not a visa that had been “granted” to the applicant.
66. Mr Cutler submitted that the argument was a difficult one to formulate clearly, but I think I have summarised it reasonably accurately.
Application of the Law and Findings of Fact
67. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).
68. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
69. Paragraph 2.3 sets out the primary considerations:
…
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
70. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (e) armed robbery and (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
71. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Could the visa be cancelled under s 501(2) of the Act?
72. The Act originally provided for entry into Australia to be regulated by a system of entry permits. That system was replaced with a universal visa system by the Migration Reform Act 1992 (Cth) (the Reform Act) which came into effect on 1 September 1994.
73. Under the new scheme, all non-citizens who did not hold visas automatically became unlawful. To avoid that consequence, the Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations) were promulgated to deem certain categories of persons to have been granted visas. Regulation 17 dealt with New Zealand citizens in Australia. It provided:
…
New Zealand citizens and certain children of New Zealand citizens
17.(1) This subregulation applies to a non-citizen who:
(a)is a New Zealand citizen; and
(b)either:
(i)was in Australia lawfully immediately before 1 September 1994; or
(ii)was, immediately before 1 September 1994, an illegal entrant because of section 20 of the old Act; and
(c)is not taken to hold:
(i)a transitional visa under Part 2 or 3; or
…
(iv)a special purpose visa; or
(v)an absorbed person visa; and
(d)was not the subject of a deportation order immediately before 1 September 1994.
…
(2)A non-citizen to whom subregulation (1) or (1A) applies is taken to have been granted a special category visa on 1 September 1994 (emphasis added).
…
74. The applicant’s argument for the proposition that his visa could not be cancelled under s 501(2) relied on Sales III, which concerned a visa under r4(1) of the Transitional Regulations which provided as follows:
…
4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia (emphasis added).
…
75. Their Honours held that the phase “a visa that has been granted to a person” in s 501(2) refers to a visa that has been granted to a person by the minister or the delegate of the minister in the normal way pursuant to the Act, or is deemed or taken by express statutory provision to be granted to a person. In particular, it would not authorise cancellation of a visa that is simply “held” by a person (at para 9).
76. The visa in question could be regarded as held by a person but could not be regarded as granted in the normal way, as the new regime did not apply to such visas. Nor could it be said that such a visa is deemed or taken to be granted by express provision (at para 10). The proposition is articulated by Gyles and Graham JJ at para 11:
… Whatever the position might be in another context, “grant” and “granted” in this statutory scheme refer to the grant of a visa by the Minister or the delegate of the minister to a particular applicant, together with those situations where there is an express statutory provision which deems the visa to have been granted. It is not apt to refer to conferral upon a class by operation of law. …
77. Their Honours went on to note that the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 had assumed that such a visa was granted but the point had not been argued. Gyles and Graham JJ did not further elaborate on the reasons for their conclusion, but Buchanan J described the phrase “that has been granted” as constituting “words of limitation” (at para 92).
78. The applicant’s TY 444 special category visa, however, derives from Transitional Regulation 17, not from r4(1). The former provision is worded in a materially different way. Regulation 17(2) states that a non-citizen to whom the regulation applies “is taken to have been granted a special category visa on 1 September 1994”.
79. That language brings the TY 444 visa squarely within the scope of the reasoning in para 9 of Sales III, in which their Honours stated that s 501(2) authorised cancellation of a visa that has been granted to a person by the minister or a delegate of the minister, “or is deemed or taken by express statutory provision to be granted to a person”. The applicant's visa is expressly taken to have been granted to the applicant by r17(2). The delegate therefore had the power to cancel the applicant’s visa pursuant to s 501(2) of the Act.
80. The applicant’s subsidiary point was that as the visa had purportedly been cancelled on 7 March 2002, it could not be cancelled again in 2008. Mr Leerdam on behalf of the respondent submitted that revocation of the earlier cancellation of the applicant’s visa on the ground that the applicant had not been accorded procedural fairness within the principles enunciated in Sales I restored the applicant to the position he was in before the 7 March 2002 cancellation. In other words, the applicant was again the holder of a special category visa granted to him on 1 September 1994.
81. The revocation of the 7 March 2002 cancellation did not alter the manner in which the applicant came to be the holder of the visa, namely by being taken to have been granted the visa.
82. An alternative view that would lead to the same result might be based on the reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at para 51 where Gaudron and Gummow JJ declared that “A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all ….”
83. On that basis, the purported cancellation of the applicant’s visa on 7 March 2002 was a nullity and the applicant remained the holder of a special category visa that was taken to have been granted to him by r17 of the Transitional Regulations.
84. On either basis, the applicant was the holder of a visa that could be cancelled pursuant to s 501(2). In any event, the tribunal has jurisdiction to review a decision within s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), even if the decision itself was invalid. All that is required is a purported exercise of the appropriate statutory power: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307; Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213; Re Gardener and Australian Prudential Regulation Authority [2007] AATA 2041
Protection of the Australian Community
85. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(e) that armed robbery, and in paragraph 2.6(f) crimes of violence against persons, are to be treated as very serious. In this case, the applicant has six convictions for robbery offences, including robbery while armed with a dangerous weapon, robbery in company, robbery while armed and robbery with violence.
86. His most recent conviction for a robbery offence resulted on 19 April 2002 in a sentence of eight years and six months' imprisonment with a non-parole period of five years. An appeal against sentence and conviction was dismissed (G pp75-85). A 1994 armed robbery conviction resulted in a sentence of six years imprisonment with 18 months non-parole period. Those sentences are an indication of the seriousness of the respective offences. In November 2005 the applicant was sentenced to six months' imprisonment for assault occasioning actual bodily harm (the offence had occurred a year earlier).
87. His Australian criminal record extends over an 18-year period, with convictions at fairly regular intervals. The April 2002 robbery conviction related to the armed robbery of the St George Bank at Wetherill Park by the applicant and a confederate who was armed with a pistol, which he used to threaten bank staff. The pair stole $57,217, none of which was ever recovered (G pp75-76, 83).
88. Other aggravating factors include his escape from lawful custody (and committing a serious offence while at large), his provision of false details, his assaults against police and the commission of offences while on bail, parole or recognisance (eg, p101). The applicant's pattern of behaviour reveals a high level of disregard for law and for the community.
89. The tribunal is also to take into account any relevant factors provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). He said he had been a rebellious child and his father had died when he was aged seven, depriving him of a male role model.
90. A parole officer reported in September 1995 that:
…
Also of significance to the writer of this report and those of previous reports is Mr Inamata’s need to have positive relationships with older males. It is noted that he idealises his dead father, and seems to hunger for a substitute. He has confided that he feels overwhelmed by women, and is unable to express resistance to advice they give and the pressures they apply (G p115).
…
91. In cross-examination the applicant said he had committed some (perhaps many) of his offences in order to support his drug and alcohol habits. He did not rely on addiction as a mitigating factor, but in any event it cannot be so regarded. As Viney J pointed out in his sentencing remarks on 5 December 1994:
… It has been said on authority that the fact that people commit offences when they are affected by drugs is not of itself a mitigating factor and that must be taken into account. Even so, it is fair to say that a person who commits offences when they are thus affected can be treated differently from criminals who simply use these sorts of crimes to maintain a lifestyle and are not motivated by such an outside agency (G p142).
…
92. Apart from having grown up without his father, the applicant advanced no mitigating factors. I find that the applicant’s criminal record must be regarded as very serious.
93. The next issue for the tribunal to consider is the risk of recidivism. Paragraph 2.10(b) of Direction No 21 stipulates that a non-citizen with several previous convictions in Australia should be considered to have an increased risk of recidivism. The applicant’s criminal history as outlined above shows that he began offending soon after his first arrival in this country. He committed large numbers of offences, many of them serious, over an 18-year period, his most serious offence being committed in November 2001. In his current period of imprisonment, he has been dealt with for a variety of offences including fighting, intimidation and concealing an article for use in an escape.
94. He committed many of his offences on bail, recognisance, parole or good behaviour bonds for other crimes. On 12 January 1996 he was warned by letter that any further convictions would result in his being reconsidered for deportation, but he subsequently went on to re-offend repeatedly, including committing his most serious offence in November 2001.
95. He has participated in rehabilitative programs while in custody, often applying himself well, as O’Reilly J noted in 1999 (G p102) and a parole officer reported in October 1995 (G pp108-109). Viney J in December 1994 also gave him credit for attending drug and alcohol courses in jail and accepted a psychologist’s opinion that the applicant had recognised the contribution that substance abuse had played in his previous offences and accepted the need for stability in his life (G p140). The pre-release report in October 1995 concluded that “He appears genuine in his remorse for these crimes, and accepts responsibility. The sentencing Judge refers to Mr Inamata's admissions of guilt and his remorse as sincere” (G p109).
96. Again, he has repeatedly claimed that he is unlikely to re-offend out of concern for his son but has subsequently returned to crime, as can be seen from Viney J’s comments (G pp140-141), the September 1995 immigration report (G pp114-115) and the October 1995 pre-release report (G p111). Nevertheless, after his release in 1996 he re-offended within less than a year, and after being jailed for that offence, escaped from prison and committed further offences.
97. As the respondent points out, despite the applicant’s claims that his son would be a catalyst for rehabilitation, the seriousness of his criminal conducted escalated. The tribunal has in the past considered that those and similar factors increase the likelihood of recidivism: cf Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126 at 31, para 31 to 51.
98. The applicant submitted that many of the matters that were raised dated from the mid-1990s. He was older and wiser now and Mr Turk had said he now has a better self-image and is less responsive to peer pressure.
99. While that is true, his most serious offence was committed in November 2001. Further, he has been in jail for the past eight and a half years, and as Deputy President Jarvis noted in Cockrell, that consideration diminishes the weight that might otherwise be attached to the absence of offending during that period (at para 34). Repeated re-offending after a formal deportation warning is a particularly adverse factor.
100. Further, Mr Turk said that assessing the applicant’s recidivism risk was “a hard one” and that his rehabilitation still had to be tested. That he had committed other crimes while in relationships was serious and his admission that he had not been genuine in his claims of remorse in 1995 was troubling. Mr Turk hoped that he had moved on but his evidence was less than confident about whether rehabilitation had actually been achieved.
101. There is no recent psychological evidence assessing the risk of recidivism. Mr Cutler conceded that the applicant had previously claimed to have changed, but said that the past is past and the applicant should be believed. But the past is relevant to whether his current assurances and those of his brother and Ms Sullivan, can add substantial weight.
102. On the basis of all the evidence I conclude that while the applicant's claims of rehabilitation may be subjectively sincere, the fact that he has previously made and dishonoured such assurances, and that his present situation has not been put to the test in the wider community, that the applicant is at moderate risk of re-offending. And given the seriousness of the crimes of which the applicant has been convicted, even a low recidivism risk carries significant danger for the community (see Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132).
103. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). In this case the applicant’s disregard for the law has been systemic and particularly serious.
104. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
105. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
106. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
107. The respondent pointed out that the tribunal had previously referred to the need to “maintain a visible probability of sanctions” (Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 at para 31). In the context of immigration fraud, Deputy President Jarvis in Cockrell pointed out that “the fact of cancellation would enable DIMIA to point to an established precedent demonstrating that repeated fraudulent conduct of the kind in question in this matter will deprive non-citizens of the opportunity to continue to reside in this country” (at para 53). The tribunal was also referred to Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at para 33.
108. The applicant committed violent crimes against members of the Australian public in the company of other offenders and for the purposes of financial gain. He escaped from prison, committed serious offences while at large and violated parole. While general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it should be taken into account. I note Mr Cutler’s submission that the applicant pleaded guilty to the robbery offences in 1994 and was not armed during the 2003 offence. Nevertheless, I conclude that the applicant’s record is so serious and sustained that considerations of general deterrence weigh in favour of visa cancellation.
Expectations of the Australian Community
109. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
110. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical and other reasons have been advanced for that view: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
111. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
112. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
113. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
114. Mr Cutler submitted that the applicant is now more mature and responsible than previously and is better equipped to be a role model for his 15 year-old son. He has expressed a wish to change his behaviour, has embraced the Christian fellowship through the Kairos movement, has participated in counselling in jail and has the support of his brother and his fiancée, an Australian citizen. Mr Turk believed the applicant had learned from his mistakes.
115. I believe the community would give weight to the fact that the applicant has lived in Australia continuously since the age of 17 and has a 15 year-old son and a fiancée here. But while he has on previous occasions expressed remorse and a wish to change his behaviour, has undertaken rehabilitation courses and had the support of a chaplain, a psychologist and a parole officer, he has seriously relapsed.
116. In my view the community would expect that the visa of a person with such a serious and sustained criminal record, is probably at risk of re-offending, has previously been specifically warned of possible deportation and who shows little evidence of stable and sustained rehabilitation should be cancelled (see Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [42] – [43]).
The Best Interests of the Child
117. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
118. The applicant has a 15 year-old son, but has provided care for him only for a brief period many years ago and has otherwise spent very little time with him. The applicant’s former partner, his brothers and foster parents have been the child's primary carers. Since he was between eight and 10 years old, Jordan has been living with the applicant’s brother, Mr Mata and his family. There is no evidence to suggest that he is not being properly cared for, nor did the applicant suggest otherwise.
119. Pursuant to Direction No 21, it is assumed that it is in Jordan's interests to remain with both his parents, but as against that, he is said to be an extremely intelligent boy and it may well be that as he is in the final years of his schooling, it would be better that his life not be disrupted by leaving his uncle and aunt and living with the applicant. But for the same reason, if the applicant’s visa were cancelled, it would be preferable that Jordan not follow his father to New Zealand even though that would not entail a significant cultural adjustment for him.
120. While the applicant has said that he intends to care for Jordan if he is released, Direction No 21 in paragraph 2.16 states that a “hypothetical prospect for developing a better/stronger relationship in the future would normally be given relatively less weight than the proven history of the relationship based on past conduct”. Further, he has previously expressed a desire to care for his son but has failed to act in a manner that reflects that commitment. The risk that the applicant might re-offend also increases the possibility that he would be imprisoned in the future, thereby reducing the likelihood that he would have a better relationship with Jordan.
121. The applicant's fiancée Ms Sullivan has a young daughter who she says views the applicant as a father. No submissions were made in relation to her, but as she is potentially affected, her interests should be taken into account.
122. As she is only two years old and the applicant has been incarcerated for the past eight and a half years, the relationship could not be a close one and there is only a hypothetical prospect for developing a stronger relationship in the future. Further, as Ms Sullivan has expressed the intention to move to New Zealand if the applicant's visa is cancelled in order to be with him, and her daughter would presumably go with her, visa cancellation would not disrupt such relationship as already exists or negate the prospects of strengthening it in the future. The child’s interests do not, therefore, weigh against cancellation. On the other hand, Jordan's interests do, although for the reasons given not as strongly as might otherwise be the case.
Other considerations
123. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
124. The applicant has no business or similar ties to the Australian community. Several members of his immediate family are living in Australia, but the evidence relating to his family structure is unclear. It would appear, however, that he has at least two brothers living in Australia, four brothers and one sister in the Cook Islands and aunts and uncles in Australia and New Zealand. There is no evidence that they would suffer disruption or hardship if he were removed to New Zealand, as he has spent most of his time while in Australia in prison, thereby greatly reducing his contact with them.
125. His fiancée Ms Sullivan seems genuinely devoted to the applicant. At the time they met he was in jail and therefore knew at least in general terms something about his antecedents. She also knew that he had previously been warned about deportation. She was emphatic that if the applicant's visa were cancelled, she would move to New Zealand with her daughter, although she would prefer not to leave her family at Wilcannia.
126. There is some evidence of rehabilitation, as noted above, but the applicant has previously participated in rehabilitation courses and expressed firm resolutions to reform that have convinced others, including the respondent, but has nevertheless re-offended. One cannot say with confidence that he is so far advanced along the road to rehabilitation as to present no significant threat to the community. I therefore conclude that the other considerations do not weigh substantially against visa cancellation.
127. The main factor in favour of the application is the best interests of the child, Jordan. As was noted above, the applicant has played little part in his care or development and Jordan is currently living in stable and caring surroundings. While his interests might nevertheless favour setting aside the decision under review, they do not do so as substantially as might otherwise be the case. Further, the other primary considerations can outweigh the best interests of a child: see, eg, Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
128. I find that the primary considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.
129. The decision under review is affirmed.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: …………………[sgd]……………………………..
Renee Wallace, Associate
Date/s of Hearing: 29 July 2008
Date of Decision: 8 August 2008
Solicitor for the Applicant: Ms K Hunter, Migration Professionals
Counsel for the Applicant: Mr P Cutler
Solicitor for the Respondent: Mr L Leerdam, DLA Phillips Fox
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