James Duwai and Minister for Immigration and Citizenship
[2013] AATA 339
[2013] AATA 339
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1176
Re
James Duwai
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 24 May 2013 Place Sydney Decision Summary
The decision under review is affirmed.
........................................................................
Mr Dean Letcher, QC, Senior Member
Catchwords
IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations
Legislation
Migration Act 1958 (Cth) secs 50(2); 501(6); 501(7)
Cases
R v Henry [1999] 46 NSWLR 346
R v Crotty (NSW Court of Criminal Appeal 28 February 1994 unrep. 60746/93)
Secondary Materials
Direction No. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
24 May 2013
James Robert Duwai (“the Applicant) applies to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship of 25 February 2013 cancelling his Australian visa. The delegate’s decision made under s 50(2) of the Migration Act 1958 (Migration Act) was on the basis that he reasonably suspected that the Applicant did not pass the ‘character test’ in s 501(6) of that Migration Act, and that the Applicant failed to satisfy him that he did pass the test.
The Applicant is a Fijian citizen born on 4 July 1971 and now aged 41 years. He first arrived in Australia on 27 April 1983 when he was aged 11 years, and he has lived almost continuously in Australia since that time. He holds a Class BF Transitional (Permanent) visa and was given permanent resident status on 25 September 1989 when he was 18 years old.
The Applicant came to Australia with his family. He has an older brother, George, and his father remaining in Australia. His mother died in 2009. His two younger brothers have had their similar visas cancelled and were deported to Fiji after convictions for armed robbery offences.
The Applicant married in 1994 but is divorced. He fathered one child, born 29 January 2001 now aged 12, whom he has seen once or twice only since entering prison on 18 October 2009. The child lives with his mother and her new partner in Sydney.
The Applicant has numerous criminal convictions and has spent only about six years of his 17 years in Australia out of prison. He is presently imprisoned with a probable release on parole not before 14 April 2014.
THE DECISION UNDER REVIEW
The delegate found that the Applicant did not pass the test because he had a 'substantial criminal record' under s 501(7) of the Migration Act. For the purposes of the Migration Act, a person has such a record if they have been sentenced to a term of imprisonment of 12 months or more. On 29 March 1995, the Applicant was convicted of robbery while armed and sentenced in the District Court of New South Wales to imprisonment for a minimum term of 18 months with an additional period of 12 months. On 14 February 2003 the Applicant was convicted of 20 robbery offences with three additional offences taken into account, and was sentenced in the District Court to imprisonment for 10 years. On 17 December 2010 the Applicant was convicted of robbery and robbery armed with an offensive weapon and sentenced to imprisonment for three years and nine months, with eligibility for parole after 22 April 2013.
Having found that the Applicant did not pass the character test by virtue of a substantial criminal record, a discretion was enlivened and the Delegate then applied the criteria set out in ministerial Direction No. 55 – Visa refusal and cancellation under s 501 of the Migration Act (the Direction) to determine whether he should use his discretion to cancel the visa. In this case, the basic question was whether the Applicant posed an unacceptable risk of future harm to the Australian community (Paragraph 7(1)(b) of the Direction). The principles of the Direction are used to determine whether the risk of future harm from a non-citizen is unacceptable and, thus, how the discretion of the Tribunal, standing in the shoes of the Minister, should be exercised.
PRINCIPLES OF DIRECTION NO. 55
The Principles are set out in Clause 6.3 and may be summarised as:
1Coming to, or remaining in, Australia is a privilege given with an expectation the person will be law-abiding and not threaten harm during their stay.
2A non-citizen who commits a serious crime generally forfeits that privilege.
3Some criminal behaviour is so serious that any risk of repetition is unacceptable.
4Australia has a low tolerance of criminal conduct by people who have been here for only a short time.
5Limited stay visa holders who commit crime should not expect to be allowed to stay.
6The length of time of a positive contribution to Australia and the consequences to minors or immediate family in Australia of visa cancellation are considerations.
PRIMARY CONSIDERATIONS
In deciding whether to cancel a visa, the primary considerations in Clause 9 of the Direction can be summarised as:
1Protection of the Australian community from criminal or other serious conduct
2Strength, duration and nature of the person's ties to Australia.
3The best interests of minor children in Australia
4Any 'non-refoulement' obligations to the person
Clauses 9.1 and 9.1.1 outline the factors which must be considered concerning the nature and extent of risk to the community from a person's misconduct given the commitment of government to protect the community from harm. The factors will be considered individually later for their significance in the context of this particular case.
OTHER CONSIDERATIONS
There are other considerations which must be taken in to account, where relevant (Clause 10 of the Direction). These considerations include: effects of the visa cancellation on immediate family; Australian business interests; impediments to the person by reason of age; health; and, language etc. if removed to a home country.
FACTUAL BACKGROUND
After arrival in Australia the Applicant and his three brothers attended school in the Sydney suburbs. The Applicant was a user of marijuana and alcohol at an early age and was first convicted of two minor offences in 1991 but stayed out of serious trouble until 1994 when he was arrested for the robbery of a taxi driver who he threatened with a knife at his throat. He says that it was during his first term of imprisonment which followed that he was introduced to heroin and he remained addicted to drugs thereafter. He says that his offences were to obtain money for drugs to feed his habit as opposed to financial gain. Despite undertakings and statements to the three judges who heard his case, that he was rehabilitated and would not use drugs again, there is a continuing record of relapse into drug use and crime after release. The Applicant’s employment was patchy due to his drug use and criminal history.
The robbery offences for which the Applicant was sentenced in 2003 involved entry, usually late at night, to stores and service stations where he threatened staff with a knife or syringe while demanding money. The victims were vulnerable, often terrified and exposed to actual or threatened violence. The offences for which the Applicant was sentenced in 2010 were similar and involved him furnishing scissors, each incident was on CCTV and the Applicant was clearly identifiable .There was a quality of recklessness about his actions and his arrest was inevitable.
PRINCIPLES IN DIRECTION NO. 55
The application of the principles set out in Clause 6.3 of the Direction to the facts of this matter lead to the following:
a)Residence in Australia is given with an expectation that the person will be law-abiding and not threatening harm. This Applicant has a long history of serious offences involving explicit threats of physical harm by violence. The courts have held in R v Henry [1999] 46 NSWLR 346 per Spigelman CJ at 99:
“Armed robbery is not simply a crime against property, it is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects of it on its various victims, establish armed robbery to be a serious crime which requires condign punishment.”
b)A non-citizen committing a serious crime generally forfeits the privilege of remaining. This Applicant has committed numerous serious offences over a period of some 15 years, some while on parole and all involving potentially lethal weapons.
c)Some criminal behaviour is so serious that any risk of repetition is unacceptable. The potential danger in the applicant’s crimes by accidental or deliberate harm from the knives, syringes or other cutting instruments wielded by a drug-affected fugitive from justice is obvious and the link between the addiction and the crime record has not been shown to have been broken.
d)There is a low tolerance of crime committed by persons resident here for only a short time. The applicant does not fit into this category having arrived as a child some 8 years before any offence and 11 years before serious breach.
e)There is less tolerance for the misdeeds of limited stay visa holders as opposed to permanent stay holders such as the applicant.
f)The length of time of a positive contribution to Australia and consequences to others remaining here if the visa is cancelled are considerations but in this case the contribution and effects on others can be assessed fairly as minor.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Direction at 9.1 requires that regard be had to the Government’s commitment to protecting the Australian community. To make that assessment, regard needs to be given to the nature and seriousness of the person’s conduct to date (9.1.1) and risk of further offences or other serious conduct (9.1.2).
Nature and seriousness of the conduct (9.1.1)
Violent or sexual crimes are regarded very seriously: The Applicant has been convicted of over 20 violent crimes involving people in potentially physically dangerous situations.
Crimes against vulnerable persons are serious: In R v Crotty (NSW Court of Criminal Appeal 28 February 1994 unrep. 60746/93) the Court said:
“… there are certain classes of victims of armed robberies, the proper protection of whom is seen by the law as requiring an even stricter application than might otherwise be appropriate of the two principles to which I have already referred. Defenceless old people are a case in point. More relevantly to the circumstances of the present case are taxi drivers, bus and train staff and people of the kind who, in the course of providing essential public services, are called upon to work late hours in lonely circumstances where they are exposed to the depredations of people wishing to rob them, and that with violence.”
In the Applicant’s case, it was taxi drivers, pizza store staff late at night and elderly residents who were the subjects of the crimes.
Seriousness of the offence: The Applicant has received effective sentences of two and a half years, 10 years and four and three-quarter years (which are lengthy terms) especially given that each judge extended some leniency on the basis of the Applicant’s statement of good intentions and his father’s mistaken belief that he would not return to drugs.
Frequency of offending and any trend of increasing seriousness of offences: The Applicant’s main problem is the repetition of robbery offences and although the actual violence or severity of each offence may not have increased, by 2009 the offences occurred on 4 September, 16 September and 4 October i.e. at about fortnightly intervals and the Applicant was arrested within the next fortnight.
Repeated offending: The Applicant offended repeatedly until stopped by arrest and gaol. In fact, he was found in possession of an addictive drug in gaol on 24 January 2013 so that the driver of his crimes still appears to be active. Despite the cancellation of the visas of two brothers in 1997 and 1999, both for robberies of taxi-drivers, and formal warnings by Immigration that his visa could be cancelled for further offences in 1996 and 2008, the Applicant continued to commit serious crimes.
Taking into account the threatened violence, the vulnerability of the subjects of the crime, the frequency and repetitive nature of offences and the severity of the jail terms imposed, the nature and seriousness of the conduct weigh heavily against the Applicant and in favour of cancellation.
Risk to the community if the applicant commits further offences or engages in other serious conduct (9.1.2)
The Direction at Clause 9.1.2 requires an assessment of risk in the future having regard to the nature of the harm and the likelihood of further offending. Robbery offences are liable to cause great physical and psychological harm to members of the public and the use of weapons poses unpredictable risks of lethal injury. The Applicant has shown an inability to resist the impulse to drug use and consequent such offences. He declined to accept a Violent Offenders program this year and has been refused parole as a result, he has been found in possession of drugs in jail this year, he has no firm plans for accommodation or employment after release and his relationships with his family in Australia are strained. In his evidence to the Tribunal, the Applicant said: “I don’t think I’m a violent person even though my charges sound violent …”, and he referred to the drug found in his possession as something that “stops the craving for heroin”.
On this basis, I find that the evidence of continuing risk and likely harm to the safety of the Australian community tells against the Applicant and weighs substantially in favour of cancellation of his visa.
Strength, Duration and Nature of Ties to Australia (9.2)
The Direction requires considering the Applicant’s family and other connections with Australia. As he has spent almost 11 of the last 17 years in prison he cannot be expected to have strong community or employment ties and he does not have them, but he also has only tenuous family relationships here. Both his younger brothers are in the Sigatoka area of Fiji, he has not seen his older brother for several years and his father and he have had difficult times. His marriage has ended and his ex-wife cut communication in 2005. He has been visited by his 12 year old son only this year apparently at the instigation of his father and without any suggestion of enthusiasm by the mother. The Applicant did not give evidence of any other family ties in this country.
On this evidence I find that there are no strong long-term or close connections to the Australian community and this factor weighs in favour of cancellation of the visa (with separate consideration of his relationship with his son).
Best Interests of Minor Children in Australia
There is one child in this category namely his 12 year old son born on 29 January 2001. The Applicant was out of jail for the periods 5 May 2000 - 28 June 2000, 12 July 2000 - 29 December 2000 and 26 January 2001 - 31 October 2001 and then in jail until a further period of release 30 April 2008 - 18 October 2009. This means the Applicant was not present during part of the pregnancy nor during almost the whole of the first seven years and none of the last four years of his son’s life. The Applicant acknowledged that he had a debt to the Child Support Agency of some $6,000, that the mother had re-partnered and did not assist his son to visit him and, while he maintained there was regular telephone contact, he did not know a lot of detail about his son’s life. It is generally assumed that a child’s interests are best served by contact with each natural parent and I will make that assumption. I find that it is not in the son’s best interests for the visa to be cancelled (9.3(1)) but the relationship between the Applicant and his son is scarcely parental, the Applicant’s past and likely future conduct may well have a negative impact on the son, and a geographical separation may not be greatly different from the likely separation between them if the Applicant remains in Australia.
There must be grave doubt as to the ability of the Applicant to maintain and advance parental contact with his son after release, given his past history of absence and law-breaking and the substantial risk of that pattern continuing. The son has the benefit of a continuous established parental relationship with his mother and her partner and there is no evidence that the mother-son tie is not satisfactory.
The best interests of the child are a primary consideration which in the circumstances of this case weighs only slightly in favour of the Applicant.
Non- Refoulement Obligations
There is no evidence of any persecutory, punitive or discriminatory consequences if the applicant were to be returned to Fiji.
OTHER CONSIDERATIONS
I have taken into account other matters under Clause 10 of the Direction. I do not find any significant impediment to the applicant’s return to Fiji by reason of language (fluent Fijian), age or health or effect on immediate family. Life in Fiji may be financially harder than Australia for the average person but that is a factor common to the whole of the population.
FINDINGS AND CONCLUSION
The Applicant fails the character test in s 501(6) of the Migration Act by reason of the length of his prison sentences. As to the exercise of discretion, the Applicant has committed over 20 serious crimes involving violence and threats of violence to vulnerable people. He attributes his criminal acts to drug addiction and there is no strong evidence that he has freed himself from this. Indeed, there is strong evidence that he has not, with repeated relapses in the past and possession of drugs in jail in January this year. He has declined to enter a Violent Offenders program offered because he says that he is not a violent person, although his charges sound violent. His statements show a lack of insight into his drug difficulties and criminality. There is a real risk of re-offending and his type of offences carry a significant danger of severe physical and psychological damage to community members. The protection of the public is the factor which outweighs other primary considerations including his ties arising from some 30 years in Australia and the best interests of his son, both of which factors have been considered and given due importance in the particular circumstances of the case.
DECISION
The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dean Letcher QC. .........[sgd].........................................................
Associate
Dated 24 May 2013
Date of hearing 9 May 2013 Applicant In person Advocate for the Respondent Katherine Hooper Solicitors for the Respondent DLA Piper Australia
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