Kapene Te Amo (Migration)

[2018] AATA 2214

Kapene Te Amo (Migration) [2018] AATA 2214 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Timoti Rawiri Hone Kapene Te Amo

CASE NUMBER:  1802915

DIBP REFERENCE(S):  BCC2017/3956447

MEMBERS:Jan Redfern (Presiding)

Michael Ison

DATE:9 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 09 July 2018 at 2:34pm.

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s.116(1)(e)(ii) of the Migration Act 1958 - whether applicant is or may be, or would or might be, a risk to the health, safety of an individual or individuals – where applicant has been convicted of criminal charges and sentence to a term of imprisonment of less than 12 months – where applicant is the subject of further criminal charges – consideration of the applicant’s conduct while in immigration detention and alleged gang involvement – lack of probative evidence in respect of gang involvement in criminal activity – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the degree of hardship to the applicant and his family, the mandatory legal consequences of cancellation and the circumstances in which the ground for cancellation arose – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 32, 82(1); 82(8), 109, 116, 117(2), 140, 198, 336N, 338(3), 338(3A), 338(4), 348, 359A, 359AA, 362A, 376, 375A, 409, 411(1)(d), 414, 496, 500(1), 501, 501CA, 501E

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth), rr 5.15A, 2.1AA; Sch 2 - cl 309.226, 444.2, 444.511, 600.213(1); Sch 4 - cl 4013, 4014

CASES

Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Administrative Appeals Tribunal – President’s Direction – Allocation of Business to Divisions in the AAT (9 October 2017)
Explanatory Memorandum, Migration Amendment (Character and General visa Cancellation) Bill 2014
Gilbert J, The Rise and Development of Gangs in New Zealand: A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy in Sociology at the University of Canterbury (University of Canterbury, 2010)
Procedures Advice Manual – PAM3 ‘s501 - The character test, visa refusal and visa cancellation’
Procedures Advice Manual – PAM3 'General visa cancellation powers'

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. This is an application for review of a decision dated 23 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is Mr Timoti Kapene Te Amo, a 47 year old New Zealand citizen. He has resided in Australia with his family since 2001 after they immigrated to Australia on Special Category visas. Mr Kapene Te Amo met his partner, Ms Michelle Nuku, when they were 16 or 17 years old. They have two adult sons, Harley-Rei and Denzil. Mr Denzil Kapene Te Amo lives in Australia and Harley-Rei now resides in New Zealand.

3. On 4 August 2017, Mr Kapene Te Amo pleaded guilty to single charges of assault, theft and unlawful imprisonment relating to an incident that occurred on 30 March 2016. He also pleaded guilty to one charge of committing an indictable offence whilst on bail. As a result of his plea, Mr Kapene Te Amo was sentenced to eight months jail in the County Court of Victoria. At the time of sentencing Mr Kapene Te Amo had been held in remand for approximately 14 months and therefore was immediately released from prison. After his release he was on bail with reporting and other conditions arising from pending criminal charges relating to an incident alleged to have taken place in 2015.

4. The delegate found that the ground for cancellation of Mr Kapene Te Amo’s visa under s.116(1)(e) of the Act was established on the basis Mr Kapene Te Amo had pleaded guilty and been convicted of serious criminal offences. The delegate was satisfied that this indicated Mr Kapene Te Amo’s presence in Australia is or may or would or might pose a risk to the safety of the Australian community. The delegate then considered whether Mr Kapene Te Amo’s visa should be cancelled, referring to guidelines formulated by the Department in its Procedures Advice Manual 3 (PAM3) on General visa cancellation powers. He concluded that the serious criminal charges and convictions and the risk to the Australian community outweighed the reasons not to cancel the visa and therefore exercised the discretion in favour of cancellation.

5. Mr Kapene Te Amo has been in immigration detention since 24 January 2018. He lodged an application for review of the cancellation decision with the Tribunal on 5 February 2018. The Tribunal made directions on 6 March 2018 about the information and submissions to be provided to the Tribunal and the case was listed for hearing on 26 April 2018. Submissions were also received after the hearing. Mr Kapene Te Amo was represented by his lawyer and registered migration agent and the Tribunal heard evidence from Mr Kapene Te Amo, Ms Nuku, their son, Mr Denzil Kapene Te Amo, and Mr Kapene Te Amo’s employer, Mr Michael Cooper.

6. At the time of the Tribunal’s hearing, Mr Kapene Te Amo was awaiting trial for three charges arising from the alleged 2015 incident, being one charge of kidnapping and two charges of false imprisonment. Those matters are due to go to trial in October 2018.

7. The issue in the present case is whether the ground for cancellation is made out, and if so, whether Mr Kapene Te Amo’s visa should be cancelled.

8. We have found that the ground for cancellation is established and have decided that the delegate’s decision should be affirmed. This means it is the Tribunal’s view that Mr Kapene Te Amo’s visa should remain cancelled. Our reasons follow.

   RELEVANT LAW

9. Non-citizens from New Zealand may obtain permission to travel to and stay in Australia under a Special Category (Subclass 444) visa. The criteria for a special category visa are set out in s.32 of the Act and r.5.15A of the Migration Regulations 1994 (the Regulations) [1]. The special category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen: cl.444.511 of Schedule 2 of the Regulations. The visa is for an indefinite period but ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss.82(1) and 82(8) of the Act.

   [1] Clause 444.2 of Schedule 2 of the Regulations provides that the only criteria for a special category visa are those set out in s.32 of the Act and r.5.15A of the Regulations. For instance, the public interest criteria set out in Schedule 4 to the Regulations do not apply to Special Category (Subclass 444) visas.

10. Special category visas may be cancelled in the circumstances set out in ss.109, 116 and 501 of the Act. Section 109 provides for cancellation where incorrect information is provided by an applicant, s.116(1) sets out the general grounds for cancellation and s.501 provides for cancellation on character grounds. Mr Kapene Te Amo’s representative made submissions about the fairness of the delegate proceeding under s.116(1)(e) where the grounds for cancellation under s.501 have not been satisfied. To understand the basis for this submission, it is convenient to briefly describe the scope of the relevant cancellation provisions under ss.116(1) and 501 to highlight the key differences.

11. The cancellation decision, which is the subject of the Tribunal’s review, was made under s.116 of the Act. The Minister may cancel a visa under s.116 of the Act if the Minister is satisfied that certain grounds specified in that provision are made out. Subsection 116(1)(e) provides that the Minister may cancel a visa if satisfied that:

    (e)the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)the health or safety of an individual or individuals.

12. This provision may be relied on by the Minister to cancel a temporary visa (such as a special category visa) where, for instance, there are pending criminal charges before the Courts or where the visa holder is convicted of offences which do not fall within the meaning of ‘substantial criminal record’ under s.501 of the Act. It is relevant to note that a permanent visa cannot be cancelled under s.116(1) of the Act: see s.117(2) of the Act.

13. The Minister has discretion to cancel a visa under s.501 of the Act if the Minister reasonably suspects the person does not pass the ‘character test’ and the visa holder or the applicant for the visa does not satisfy the Minister otherwise. A person does not pass the ‘character test’ if they fall within the provisions of s.501(6), which relevantly include:

    (1)having a ‘substantial criminal record’: s.501(6)(a) as defined by s.501(7);

    (2)being a person in respect of whom there is a reasonable suspicion is or has been a member or associate of a group or organisation that has been or is involved in criminal conduct: s.501(6) (b) of the Act;

    (3)where there is a risk the person would engage in criminal conduct in Australia: s.501(6)(d)(i) of the Act; and

    (4)being ‘not of good character’ because of past or present criminal conduct: s.501(6)(c) of the Act.

14. A visa holder will have a ‘substantial criminal record’ under s.501(7) if he or she has been convicted of one or more crimes and sentenced to a term of imprisonment of 12 months or more, or to 2 or more terms where the total is 12 months or more. Subsection 501(3A) provides that the Minister must cancel a visa if the visa holder has a ‘substantial criminal record’ or has committed a sexually based offence involving a child. Notwithstanding this, there is a process where the former visa holder may apply for the cancellation to be revoked: s.501CA of the Act.

15. As such, there are two regimes under the Act which give the Minister power to cancel a visa where there has been proven or alleged criminal misconduct[2].

    [2] Refer to the discussion by the the Full Court of the Federal Court in Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 at [42].

16. Department guidelines in PAM3 on s501 – The character test, visa refusal and visa cancellation, notes at paragraph [3.2.4]:

    When determining whether a case should be referred for cancellation under s501, consideration should be given as to whether any of the other general cancellation powers apply…

17. It is further noted:

    If more than one cancellation power applies in a particular case, the appropriate cancellation power can depend on the type of visa held and the whereabouts of the visa holder.

18. There is no further relevant commentary in this guideline or the guideline on general cancellation as to which cancellation power would be the appropriate cancellation power in particular cases.

19. While the powers under both ss.116(1)(e) and 501 may form the basis to establish a ground for cancellation where there has been criminal misconduct, broadly speaking, the power under s.501 requires a more serious level of offending and a higher level of satisfaction about risk. For instance, a conviction with a sentence of a term of imprisonment of 12 months or more will lead to mandatory cancellation. Criminal charges or convictions where the visa holder is sentenced to a term of imprisonment for less than 12 months may still form the basis for a cancellation under s.501 but the threshold for establishing the ground requires the Minister to be satisfied about other matters before the power is enlivened. There are different review processes and consequences, depending on which regime is used. For instance, if a visa is cancelled under s.501, merits review lies with the General Division of this Tribunal[3] and the former visa holder will be precluded or limited from making a further application for a visa[4]. If a visa is cancelled under s.116, review is to the Migration and Refugee Division of this Tribunal[5] and cancellation does not, of itself, preclude or limit further applications for a visa. The Department is not a party to the proceedings and does not provide evidence or make submissions.

    [3] Subsection 500(1) of the Act. According to Item 2.2 of the President’s Direction ‘Allocation of Business to Divisions in the AAT’ dated 9 October 2017, matters not falling within the table at Item 2.1 are dealt with in the Tribunal’s General Division. While there may be a small category of visa cancellation decisions that could be dealt with in the Security Division (where there is a related security assessment application), in most cases visa cancellations not dealt with in the Migration and Refugee Division would be dealt with in the General Division.

    [4] Section 501E of the Act; r.2.12AA of the Regulations.

    [5] Sections 336N, 338(3), 338(3A), 338(4), 348, 409, 411(1)(d) and 414 of the Act.

20. In the present case, Mr Kapene Te Amo has been convicted of criminal misconduct and has been sentenced to a term of imprisonment of less than 12 months. He has been charged with further criminal misconduct but has not been convicted. Those charges are unproven. As such, Mr Kapene Te Amo does not have a ‘substantial criminal record’ for the purposes of the cancellation power under s.501 of the Act.

21. In contrast to the position under s.501(3A), the Minister has discretion whether to cancel a visa if satisfied that the ground for cancellation under s.116(1) is made out. The Minister has delegated this power to officers of the Department under s.496 of the Act.

22. Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion. The Minister has not issued any directions as to the factors to be considered but the Department has developed guidelines in PAM3 − General visa cancellation powers.

23. The Departmental guidelines cover such matters as:

    (1)the purpose of the visa holder's travel and stay in Australia including whether the visa holder has a compelling need to travel to or remain in Australia;

    (2)the extent of compliance with visa conditions;

    (3)the degree of hardship that may be caused to the visa holder or their family, which includes financial, psychological, emotional or other hardship;

    (4)the circumstances in which the ground of cancellation arose;

    (5)the past and present conduct of the visa holder towards the Department;

    (6)whether there are mandatory legal consequences arising from the potential cancellation of the visa, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;

    (7)whether there would be consequential cancellations under s.140 of the Act;

    (8)whether any international obligations would be breached as a result of the cancellation; and

    (9)any other relevant matters.

24. Each of these matters, in so far as they are relevant to the circumstances in this case, is addressed below.

    PROCEDURAL ISSUES

25. On 6 March 2018 the Tribunal listed the review for a directions hearing to discuss with Mr Kapene Te Amo’s representatives the issues in dispute, the evidence which Mr Kapene Te Amo wished to rely on and any other procedural issues that were relevant to the preparation and hearing of the matter.

26. At the directions hearing the Tribunal directed that:

    (1)The hearing of Mr Kapene Te Amo’s application be set down for 26 April 2018;

    (2)Mr Kapene Te Amo’s representatives make any application for access to documents under s.362A of the Act as soon after the directions hearing as possible;

    (3)The Tribunal would provide Mr Kapene Te Amo’s representatives with a copy of the Department’s s.375A and s.376 certificates for comment on their validity;

    (4)Mr Kapene Te Amo’s representatives provide the Tribunal with a copy of the August 2017 sentencing remarks of the County Court judge who sentenced Mr Kapene Te Amo in relation to the 2016 matters prior to the hearing; and

    (5)Mr Kapene Te Amo’s representatives provide the Tribunal with written submissions and statements from Mr Kapene Te Amo and affected family members within four weeks.

27. The Tribunal was provided with the Department file. Mr Kapene Te Amo’s representatives requested access to this file and the Tribunal file under s.362A of the Act. Contained in the Department file were documents that were relevant to the review in respect of which a delegate of the Minister had issued certificates under ss.375A and 376 of the Act. These provisions limit the potential disclosure by the Tribunal of specified information on the Department file. Section 375A prohibits disclosure and s.376 allows disclosure to the applicant or any witness on discretionary grounds. The Tribunal formed the preliminary view that the certificates were invalid and after correspondence with the Department, both certificates were revoked prior to the Tribunal processing the s.362A application by Mr Kapene Te Amo’s representatives.

28. Mr Kapene Te Amo’s representatives obtained a copy of the Tribunal file and the Tribunal’s copy of the Department’s file, with third party personal affairs information redacted. Otherwise both files were provided in full.

29. At the hearing Mr Kapene Te Amo’s representatives confirmed they had received copies of the Tribunal and Department files and did not object to the redactions made.

30. There was information in the Department file, some of which was disclosed by the release of the file prior to the hearing, that was potentially adverse to Mr Kapene Te Amo’s case. There was also information provided to the Tribunal just prior to the hearing by Serco Group Pty Ltd (Serco), being a security risk assessment report dated 24 April 2018[6]. Serco manages the Maribyrnong Immigration Detention Centre where Mr Kapene Te Amo is currently detained and is responsible for transporting Mr Kapene Te Amo to and from hearings before the Tribunal. Some information contained in the Serco report was also potentially adverse to Mr Kapene Te Amo’s case.

    [6] Tribunal file, folios 97-98.

31. The information was to the effect that:

    (1)Media reports and information in the Department file suggested that Mr Kapene Te Amo was a member of the ‘Mongrel Mob’ a gang with its origins in New Zealand. The Mongrel Mob is variously described in media reports in the Department file as a New Zealand street gang or a crime gang.

    (2)The Serco security risk assessment report referred to three separate incidents which suggest Mr Kapene Te Amo is aggressive. The first incident reported is said to have occurred on 13 February 2018 where it was alleged Mr Kapene Te Amo acted in an aggressive manner toward Serco staff, telling them the mechanical restraints he was wearing at the time were annoying him, requesting their removal and after the Serco staff refused his request telling staff he ‘could take them all on anyway’. The second incident was said to have taken place on 25 February 2018 where it is alleged a visitor to Mr Kapene Te Amo was verbally aggressive, resulting in the visit being terminated and Mr Kapene Te Amo kicking a chair as he left the room. The third incident alleged to have occurred was on 2 March 2018 when Mr Kapene Te Amo is said to have displayed abusive and aggressive behaviour towards another detainee in a recreation area. The Serco report also gave an account of adverse comments alleged to have been made by a Magistrate at a bail hearing.

    (3)The Department file included a file note of a conversation alleged to have taken place in January 2018 between a Department officer and Ms Nuku to the effect that she had been separated from Mr Kapene Te Amo for five years.

1. This information was either provided to Mr Kapene Te Amo during the course of the hearing under the procedures set out in 359AA of the Act or after the hearing by way of a request for a written response, pursuant to ss.359A. These procedures form part of the ‘procedural code’ provided for in the Act, which is different from the procedural rules that apply to other Divisions of the Tribunal. The response provided by Mr Kapene Te Amo to these matters is set out in more detail later in our decision.

   EVIDENCE

   Documentary evidence and statements

2. The following is a summary of the key aspects of the documentary evidence and statements before the Tribunal.

3. The Tribunal was provided with a copy of the Department file, which included the notice of intention to consider cancellation of Mr Kapene Te Amo's visa (NOICC), the decision record, media articles and information from Victoria Police, such as a charge sheet, records of Mr Kapene Te Amo's criminal history in Victoria and New Zealand and a sentencing report from Corrections Victoria.

4. It is apparent from these documents, and is not in dispute, that Mr Kapene Te Amo was charged with numerous criminal offences in relation to an incident in 2016, being kidnapping, extortion, common assault, armed robbery, false imprisonment, theft, theft of a motor vehicle, threat to commit a sexual offence and the summary offence of commit an indictable offence whilst on bail. He pleaded guilty to four of these offences (common assault, theft, false imprisonment and commit indictable offence on bail) and was convicted on 4 August 2016. Mr Kapene Te Amo was sentenced to eight months prison although it was recorded in the delegate’s decision that he served 435 days in criminal detention pending his trial[7]. According to the sentencing remarks of his Honour Judge Taft of the County Court of Victoria, Mr Kapene Te Amo spent 486 days in custody[8]. Nothing turns on this discrepancy.

   [7] Tribunal file, folio 11.

   [8] Tribunal file, folio 80 (back).

5. Mr Kapene Te Amo had a lengthy criminal record in New Zealand before migrating to Australia. The majority of these charges related to driving, drink driving and cannabis offences. He was convicted of numerous offences and disqualified from driving for lengthy periods, fined and in a number of cases sentenced to periodic detention for periods between three and eight months or supervision orders. He was imprisoned for five months in 1992. This is not in dispute. Mr Kapene Te Amo gave evidence about these matters at the hearing and this last record was referred to in submissions made by Mr Kapene Te Amo’s representatives after the hearing.

6. The media articles were online reports from The Age newspaper dated 1 June 2016 and Channel Nine News dated 19 August 2016 relating to an early court appearance by Mr Kapene Te Amo and his son, Mr Denzil Kapene Te Amo, in the Melbourne Magistrates’ Court in respect of the 2016 incident. The reports refer to the charges alleged against Mr Kapene Te Amo and his son. The reports include references to the police allegations that both Mr Kapene Te Amo and Mr Denzil Kapene Te Amo are members of the Mongrel Mob and a Victoria Police officer is quoted as asserting to the Court that Mr Kapene Te Amo is believed by Victoria Police to be heavily involved in criminal activities[9].

   [9] Departmental file, folios 66-68.

7. Mr Kapene Te Amo did not respond to the NOICC, the grounds for which was the charges and convictions. He states he did not receive the NOICC. The notice was sent to Mr Kapene Te Amo's residential address by registered post but was returned when he did not collect it. While it is accepted that this constituted service under the provisions of the Act, Mr Kapene Te Amo's representatives criticised the Department for failing to effect personal service on him in circumstances where they were on notice of his whereabouts. It is contended that the cancellation process was flawed because Mr Kapene Te Amo did not have the opportunity to respond to the NOICC. We have addressed this submission in our consideration of the matter as set out below.

8. Prior to the hearing, Mr Kapene Te Amo provided submissions as to why his visa should not be cancelled supported by a statement from him, a copy of the sentencing remarks of the County Court Judge who sentenced him, extracts of documents from the Department file and media reports that indicate that the Victorian government was recruiting additional police officers to increase police presence and combat the rising crime rate in Victoria.

9. According to Mr Kapene Te Amo's statement, he has been working since he arrived in Australia. He and Mr Denzil Kapene Te Amo worked for Metro Rail and more recently he worked for Mr Michael Cooper, who operates a transportation business. His other son, Harley-Rei, is in New Zealand attempting to gain joint custody of his children but once this issue has been resolved, he intends to return to Australia with his partner and her children. Mr Kapene Te Amo stated that he assists his sister, Ms Lorana Foster, with her younger children and is close to them. He is concerned that if he is forced to return to New Zealand he will no longer be able to provide this support to his sister. He is also concerned that separation would put undue financial pressure on his partner, Ms Nuku, and would damage their relationship.

10. Mr Kapene Te Amo states that he has made a contribution to the Australian community because he has worked hard, paid taxes and has not received any welfare payments from the Australian government. He says that it would be difficult for him to access the same employment and income opportunities in New Zealand. He was also concerned that he would not be able to financially support his son Harley-Rei. Mr Kapene Te Amo says he pled guilty to the 2016 charges at the earliest available opportunity[10]. He is remorseful and realises that the actions he took to recover money from his former employer were wrong.

    [10] In his sentencing, His Honour Judge Taft gave Mr Kapene Te Amo a significant discount for his guilty plea, but noted that whilst the plea of guilty must be considered to have been offered at a relatively early stage, essentially the same plea was offered by the prosecution after committal and was not accepted by Mr Kapene Te Amo until shortly before a jury was to be empanelled for the trial: Tribunal file, folio 77 (back) at paragraph [13].

11. Prior to the hearing, the Tribunal sought clarification about the charges that were pending. On the morning of the hearing, the Tribunal was provided with copies of the original indictment, a letter from his criminal law solicitor reporting to Mr Kapene Te Amo following his trial, a memorandum from his Counsel and copies of the current trial indictment documents showing the withdrawal of a charge and the details of the charges that are pending. Having regard to these documents, the following appears to be the position.

12. Mr Kapene Te Amo pleaded guilty to the four charges previously referred to arising from the 2016 incident and the balance of the charges were withdrawn. The charges relating to the 2015 incident were threat to kill, threat to inflict serious injury, extortion with threat to kill, kidnapping and false imprisonment. These charges were listed for hearing over a period of 10 days in late October and early November 2017. The jury returned a verdict of not guilty in respect of the charges of threat to inflict serious injury and threat to kill, but was unable to reach a verdict on the remaining three charges. The jury was discharged. The prosecution decided not to proceed with the charge of extortion with threat to kill but is proceeding with the kidnapping and false imprisonment charges. According to Mr Kapene Te Amo’s representatives, the criminal trial is due to commence in October 2018. Mr Denzil Kapene Te Amo has also been charged with false imprisonment in relation to the 2015 incident.

13. The Tribunal was provided with witness statements from Ms Nuku and Mr Denzil Kapene Te Amo on the morning of the hearing. Ms Nuku’s statement was broadly speaking consistent with the oral evidence that she gave at the hearing. She stated that if Mr Kapene Te Amo had to leave Australia the family would be ‘devastated’. There was nothing for them to return to in New Zealand and this would break up the family. Mr Kapene Te Amo had been her partner for 32 years and he was the father of her sons. She was concerned as to how they would survive financially and in her view there would be an impact on Mr Kapene Te Amo's sister, Ms Lorana Foster, who relied on them to assist her with the care of her children.

14. Mr Denzil Kapene Te Amo’s statement was also consistent with his oral evidence. He was worried about how his father would cope in New Zealand without them but was also concerned about the impact of his father’s absence on his aunt, his mother and his grandmother. Mr Denzil Kapene Te Amo stated that he did not know if he would return to New Zealand if his father had to and he wants his father released from immigration detention so they can be a family again. He went on to state that if he has children he wants them to grow up in Australia and wants his father to be part of their lives here.

    Evidence at the hearing

    Mr Kapene Te Amo

15. Mr Kapene Te Amo gave evidence that he is of Maori descent and was raised by alcoholic and abusive parents in New Zealand. He acknowledged he had an extensive criminal record in New Zealand between 1987 and 1999 which he said related to his use of cannabis and alcohol. Mr Kapene Te Amo’s recollection was that most of the offences were driving, driving without a licence offences and possession of cannabis offences. He acknowledged he had not seen his criminal history report in a long while.

16. Mr Kapene Te Amo and Ms Nuku met and became a couple at a young age. Mr Kapene Te Amo gave evidence that it was hard to find work in New Zealand. They mainly worked seasonal work on orchards picking produce and that Ms Nuku obtained more regular work than he did.

17. Having two young children, Mr Kapene Te Amo said he and Ms Nuku decided to relocate to Australia in the hope of finding more work and providing a better life for their children. They arrived in Australia in 2001.

18. Mr Kapene Te Amo gave evidence he was quickly employed doing factory work shortly after arriving in Australia and has been working ever since. His longest continuous employment appears to have been with Toll Logistics Pty Ltd (Toll) where he was a truck driver. Toll assisted Mr Kapene Te Amo to obtain upgraded truck licences over the years.

19. Mr Kapene Te Amo has also worked casually for sub-contractors to Metro Rail, assisted his son Denzil to obtain work there, and worked casually as a truck driver for Mr Michael Cooper, who operates his own transport business.

20. Mr Kapene Te Amo explained that in addition to his various casual jobs, he and Ms Nuku also provide support and assistance to his sister, Ms Lorana Foster, who has daughters aged 10 and 12 years and an adult son. Ms Foster is a serving police officer who often has to work shift work. Mr Kapene Te Amo said he or Ms Nuku would pick Ms Foster’s daughters up from school and he would then look after them at his home. In his absence Mr Denzil Kapene Te Amo has been assisting his mother to help Ms Foster. Mr Kapene Te Amo expressed concern that if his visa remained cancelled then Ms Foster may not be able to arrange or afford the childcare support she needs to keep working shift work and that Ms Foster’s career as a police officer may suffer or even be in jeopardy.

21. Ms Foster was not available to give evidence and at the commencement of the hearing Mr Kapene Te Amo’s lawyers advised she had been directed not participate in these proceedings by her employer. There was no evidence to support this assertion but we accept the evidence, corroborated in some part by Ms Nuku and Mr Denzil Kapene Te Amo, that Mr Kapene Te Amo is close to his sister, has assisted Ms Foster in the past and has a connection with her children. The impact on Ms Foster’s career of Mr Kapene Te Amo’s visa remaining cancelled and of him being deported after any criminal trial is speculative, although we accept it is likely there will be some impact on Ms Foster. This issue is addressed later in our reasons.

22. Mr Kapene Te Amo gave evidence that he and Ms Nuku help financially support his eldest son in New Zealand who was injured in an assault in 2014 and is unable to work.

23. Mr Kapene Te Amo gave his account of the incident on 30 March 2016 which led to his convictions. He said he was working as a casual truck driver and labourer for the owner of a stonemason business. He generally earned around $1,000 a week but had not been paid by the owner for 12 weeks. Mr Kapene Te Amo says he attended the owner’s factory and demanded payment. He was frustrated by the owner’s denials and put his arm on his shoulder and took money from him. He denied putting his arm around the owner’s throat and lifting him up, although conceded it may have seemed this way because the owner was small and he was larger and taller than the owner. The owner said he was about to do a cash job and if Mr Kapene Te Amo accompanied him he would give Mr Kapene Te Amo the cash. Mr Kapene Te Amo agreed and said that when they stopped at a service station to get a drink he realised the owner was not going to pay him anything. He asked the owner to return him to the factory. When they arrived at the factory, the owner ran away.

24. It is relevant to note that Mr Kapene Te Amo’s evidence differed from the account given by His Honour, Judge Taft of the County Court of Victoria in his sentencing remarks and the prosecution summary read to the court before Mr Kapene Te Amo was sentenced. This is discussed in more detail later in these reasons.

25. As already noted, the Tribunal raised certain adverse information with Mr Kapene Te Amo during the hearing to give him the opportunity to respond or comment. Mr Kapene Te Amo was also given the opportunity to seek an adjournment and to confer with his representatives, which he did. After a number of adjournments during the course of the hearing, Mr Kapene Te Amo provided the following evidence.

26. Mr Kapene Te Amo said that the Mongrel Mob is a street group, not an outlaw motorcycle gang, that is well established in New Zealand. He grew up with many members of the group. Mr Kapene Te Amo told the Tribunal that school friends he grew up with as well as his uncles and cousins were members and he associated with them when in New Zealand but he was not a member himself. He was not aware of the Mongrel Mob participating in criminal activities in Australia. Mr Kapene Te Amo denied ever being a member of the Mongrel Mob and professed to have limited knowledge of the group, stating that he did not believe the Mongrel Mob has formed any groups in Australia.

27. Mr Kapene Te Amo was shown a copy of an article published in the Age Newspaper on 1 June 2016 which was accessed from the internet, was in the Department file and had been provided to his lawyers prior to the hearing. The article heading was ‘Rival Kiwi crime gangs Black Power and Mongrel Mob muscle up in Melbourne’ and included a report of a Melbourne Magistrates’ Court hearing into allegations involving both Mr Kapene Te Amo and his son, Mr Denzil Kapene Te Amo. The article included a photograph of the back of a person riding a motorbike wearing a vest with an emblem on the back of the vest with the words ‘Mongrel Mob’ in a half circle at the top and the word ‘Melbourne’ in a half circle at the bottom in large letters with a stylised picture of a bulldog in the centre of the circle. Mr Kapene Te Amo was asked about this photograph. He said that the motorcycle in the picture was his Harley Davidson motorcycle but that he was not the rider pictured. He said he often lent his motorcycle to others, did not care what they wore when they rode his motorcycle and the person in the picture was a Mr Malcolm Rowland, who he grew up playing rugby with in New Zealand. Their families were once close but he had not seen him for a few years because Mr Rowland began smoking methamphetamine, known colloquially as ‘ice’.

28. Mr Kapene Te Amo initially told the Tribunal that despite the picture he did not believe the Mongrel Mob had a presence in Melbourne but later conceded that the gang could be in Melbourne.

29. On further questioning about the Mongrel Mob, Mr Kapene Te Amo gave evidence that he had received five Mongrel Mob t-shirts as gifts from friends from New Zealand, had purchased Mongrel Mob patches over the internet and had those sewn onto a vest, which he only wore in his car and around the house but even then ‘only a few times’. Mr Kapene Te Amo also told the Tribunal he had the words Mongrel Mob and a picture of a bulldog tattooed on the front and back of his torso and that these tattoos were done by his son Harley-Rei.

30. Despite this evidence about an apparent involvement with the Mongrel Mob in Melbourne, Mr Kapene Te Amo denied he was a member on a number of occasions.

31. In relation to the three allegations contained in the Serco security risk assessment Mr Kapene Te Amo gave the following evidence:

    (1)In relation to the first incident he had been handcuffed for an extended period whilst attending Court proceedings, could not eat properly whilst handcuffed and asked for the handcuffs to be removed. When that request was denied he conceded he said what was recorded in the Serco report but this was out of frustration. He realised at the time what he said was wrong and then did not speak to the Serco staff again;

    (2)In relation to the second reported incident he became aware there was potentially going to be a fight between two detainees in the yard at the immigration detention centre and when a third detainee sought to become involved Mr Kapene Te Amo pulled that detainee away and told him the matter had nothing to do with him; and

    (3)In relation to the final incident he and his partner, Ms Nuku, were conducting a visit in a shared space for visits. They were discussing personal matters about their relationship but kept being interrupted or disturbed by a noisy family visit at the adjacent table. They asked to be moved to a quieter part of the room but that request was denied. When they were further interrupted Mr Kapene Te Amo said that Ms Nuku lost her temper and swore at immigration detention staff leading to the visit being terminated by staff and him kicking a chair in frustration.

32. Mr Kapene Te Amo said that he had not been involved in any other incidents whilst in immigration detention and he is regularly chosen by centre staff to attend two different voluntary monthly meetings. One meeting is to discuss activities for detainees and what detainees need. Mr Kapene Te Amo is one of two detainees representing his unit and continues to attend these meetings. The other meeting is about the health, specifically mental health, of detainees. Mr Kapene Te Amo said he had stopped attending these meetings but had recently been asked by immigration centre management to participate again. He considered this as a compliment about his positive contribution to the management of the centre and welfare of detainees. In summary, Mr Kapene Te Amo believes his relationship with immigration centre management is good.

33. Mr Kapene Te Amo also gave evidence that despite several ‘break ups’ in their relationship, he and Ms Nuku had been partners for approximately 30 years. They had always lived together, even during their separations. When Mr Kapene Te Amo was asked why Ms Nuku had told Department officers they had been separated for five years he said that Ms Nuku was not sure who was seeking his contact information and she always checked with him before providing such information over the telephone. Ultimately, he instructed Ms Nuku to provide his contact details because he thought it must have been the Australian Tax Office.

34. Mr Kapene Te Amo said that if he had to return to New Zealand there would be nothing there for him. He has not spoken to his mother for approximately 20 years, he has an older brother in New Zealand who he last visited in 2010 but otherwise has not had a lot to do with him. He has an older sister and a younger sister in New Zealand. He is close to his older sister but does not have much to do with his younger sister.

    Mr Denzil Kapene Te Amo

1. Mr Denzil Kapene Te Amo gave evidence that he lives with his maternal grandmother in Brookfield. He left school at 16 and has worked various jobs, most recently at Metro Rail for two years as a casual but now he is full time. He contributes to the rent at his parent’s home and at his grandmother’s home. He helps with his nieces if his aunt Ms Foster wants to go out or needs assistance by picking them up from school or babysitting them.

2. Mr Denzil Kapene Te Amo said he is not a member of the Mongrel Mob, his father and older brother are not members of the Mongrel Mob and he only knows about the Mongrel Mob through inquiries he made online as a teenager and because they were ‘big’ in the area where he initially grew up in Hastings, New Zealand. He also told the Tribunal he does not have any Mongrel Mob tattoos or the word ‘mongrel’ or the word ‘mob’ tattooed anywhere on his body or any Mongrel Mob clothing or paraphernalia. He says he has a tattoo on the back of his left hand that is of a bulldog’s head which is not a Mongrel Mob tattoo but reflects that he breeds British bulldog dogs. He told the Tribunal the Mongrel Mob has a motto ‘Zeig f****** heil’ but he had not heard his father say those words.

3. Mr Denzil Kapene Te Amo gave evidence that he was certain his father does not have any Mongrel Mob tattoos. He said his evidence was truthful and when advised that Mr Kapene Te Amo had already told the Tribunal he has Mongrel Mob tattoos on the back and front of his torso, Denzil responded that he did not know anything about that.

4. Mr Denzil Kapene Te Amo told the Tribunal he had seen his father wearing Mongrel Mob clothing in the form of a t-shirt with the words Mongrel Mob and a picture of a bulldog on the front and back of the t-shirt but had not seen him wearing a denim Mongrel Mob vest.

5. Mr Denzil Kapene Te Amo said that he has met Mr Malcolm Rowland more than once but does not know whether he is a member of the Mongrel Mob.

6. When shown the photograph in The Age newspaper article referred to above of the person riding a motorcycle and wearing a vest with Mongrel Mob Melbourne patches, Mr Denzil Kapene Te Amo immediately identified the rider as his father, Mr Kapene Te Amo.

   Ms Michelle Nuku

7. Ms Nuku gave evidence that she and Mr Kapene Te Amo have been partners on and off, mostly on, for over 30 years and have lived together all that time, at least when Mr Kapene Te Amo has not been in prison or immigration detention. When asked why she had told the Department officer that she and Mr Kapene Te Amo had been separated for five years, she said that the caller did not identify where they were from and she said this so she could first check with Mr Kapene Te Amo or his sister, Ms Foster, whether it was alright to provide the information requested. She had requested that the caller call her back. Both Mr Kapene Te Amo and Ms Foster agreed the information should be provided and Ms Nuku would have provided the information but the person did not call back.

8. She said that the last three years has been hard financially without Mr Kapene Te Amo’s wage. Ms Nuku can just support herself on the wage she earns from Toll and Mr Denzil Kapene Te Amo contributes financially to the family. Her eldest son Harley-Rei needs a lot of financial assistance as he is unable to work and has a partner with five children from a previous relationship who receives no financial assistance from the father of the children. Ms Nuku explained that Harley-Rei was living in New Zealand trying to secure access to his two children from a previous relationship but once this issue was resolved, he planned to return to Australia.

9. Ms Nuku said she had heard of the Mongrel Mob and heard them called a gang but is not sure what they should be called, although she calls them a club. She knows the Mongrel Mob is based in Hastings, New Zealand where she grew up and that they have members all over New Zealand.

10. When asked about Mr Kapene Te Amo’s involvement with the Mongrel Mob, she said that he is not now a member but was in 2016. She is aware of Mr Kapene Te Amo’s Mongrel Mob tattoos and believes they were done by her older son, Harley-Rei. She does not believe Harley-Rei is a member of the Mongrel Mob but that Mr Denzil Kapene Te Amo is. Ms Nuku said Mr Denzil Kapene Te Amo has a Mongrel Mob tattoo on his back and she believes the tattoo of a bulldog on the back of his hand is a Mongrel Mob tattoo. When shown the photograph of the person riding a motorcycle referred to above, Ms Nuku immediately identified the rider as her partner, Mr Kapene Te Amo. She also confirmed she has seen Mr Kapene Te Amo wearing Mongrel Mob branded clothing. She said she had met others who she believed to be members of the Mongrel Mob at her home, including Mr Malcolm Rowland, and has seen up to five or six people wearing Mongrel Mob clothing at their house on more than one occasion.

11. Ms Nuku said she would be devastated if Mr Kapene Te Amo were forced to leave Australia as they have been together since they were 15 years old. She has lived most of her life with him. Ms Nuku also gave evidence that she is not sure whether she would stay in Australia or return to New Zealand with Mr Kapene Te Amo if he was forced to leave Australia. She told the Tribunal she has lived her life in Australia and would prefer to stay here and knows that Mr Kapene Te Amo would not force her to return to New Zealand.

    Mr Michael Cooper

12. Mr Cooper gave evidence that he first met Mr Kapene Te Amo whilst they both worked at Toll and they have known each other for approximately 12 to 13 years. He owns and operates his own transport business which he started in 2016 and now has two trucks, where he is the principal driver of one truck and employs other drivers for his second truck. His business operates in construction and transporting containers, generally as a subcontractor. He bought the second truck nine months ago on the understanding that Mr Kapene Te Amo would drive it, knowing Mr Kapene Te Amo’s word is good and he could rely on him.

13. Mr Kapene Te Amo has worked periodically for Mr Cooper as a driver, including when he was charged in April 2016 and later when he was released from prison in August 2017 until he was detained and placed in immigration detention in January 2018. Mr Cooper said he will offer Mr Kapene Te Amo a full time job as a truck driver. Work would be available immediately. Mr Cooper told the Tribunal that Mr Kapene Te Amo is a very good and his most reliable driver who has ‘the best work ethic of any driver he has employed’. With Mr Kapene Te Amo unavailable his second truck has been dormant which means he is losing money.

14. If Mr Kapene Te Amo has to leave Australia Mr Cooper is concerned about the viability of his business and is concerned he ‘could lose everything’ because he mortgaged his house to purchase the second truck. He is reluctant to sell his second truck as he is trying to grow his business to be successful and provide a future for his sons. If Mr Kapene Te Amo was required to leave Australia he would need to consider his position. He has two sons aged two and six and Mr Kapene Te Amo would also help care for Mr Cooper’s sons when he was working long hours, including picking his eldest up from school. In summary, Mr Cooper’s evidence was to the effect that he would be seriously impacted by the deportation of Mr Kapene Te Amo.

15. Mr Cooper also gave evidence that he has not heard of a group known as the Mongrel Mob and did not know whether Mr Kapene Te Amo was a member.

    Re-examination of Mr Kapene Te Amo

16. Given the inconsistency in certain aspects of the evidence provided by Mr Kapene Te Amo about his involvement in the Mongrel Mob the Tribunal re-examined Mr Kapene Te Amo.

17. Mr Kapene Te Amo acknowledged that his evidence that Mr Rowland was riding his motorcycle in the picture was incorrect. He said that he had denied being the subject of the photograph because he was concerned about being ‘tied into something that he is not really a part of’. He said that the allegations of him being a member of the Mongrel Mob were raised by the prosecution in his October prosecution and ‘the judge threw that out’. He told the Tribunal that he has many friends. Some are members of the Mongrel Mob that come to Australia to look for work and visit him. However, he is not a member of the Mongrel Mob and it is now something he does not want to be a part of.

    SUBMISSIONS AND EVIDENCE PROVIDED AFTER THE HEARING

18. After the hearing the Tribunal was provided with further particulars of the remaining charges, details in respect of Mr Kapene Te Amo’s current bail conditions, further submissions about the consequences for Mr Kapene Te Amo and his family resulting from the decision to cancel his special category visa, a research article and media reports in relation to the Mongrel Mob and Mongrel Mob paraphernalia, a further statement from Ms Nuku about her evidence in the proceedings and her understanding of Mr Kapene Te Amo’s involvement with the Mongrel Mob and submissions about the weight that should be given to the evidence about Mr Kapene Te Amo’s involvement with the Mongrel Mob. This evidence and submissions were provided to the Tribunal following requests for further information and submissions made at the end of and following the hearing.

19. Mr Kapene Te Amo’s representatives provided further details about the nature of the outstanding criminal charges. They provided a summary of the prosecution opening and the defence response to the opening. In brief, the prosecution alleges Mr Kapene Te Amo left personal items at a property occupied by a third party. When Mr Kapene Te Amo requested the return of the property he was told it had been sold. Mr Kapene Te Amo is alleged to have demanded payment for his property and when certain monies remained unpaid, it is alleged that whilst he was looking for the third party he met another person who lived with the third party and took her to the third party’s house and held her there against her will while he waited for the third party to return. Mr Kapene Te Amo denies these allegations. As outlined below, Mr Kapene Te Amo’s representative submitted that these unproven charges should be given little weight in assessing risk and whether Mr Kapene Te Amo’s visa should be cancelled.

20. In her statement, Ms Nuku sought to clarify the evidence she had given at the hearing. She stated that Mr Kapene Te Amo’s association with the Mongrel Mob was through family that were members of the gang in New Zealand. She stated that Mr Kapene Te Amo had never been an ‘actual member’ of the Mongrel Mob although she was aware he had Mongrel Mob patches and t-shirts and that some friends who came to their house to socialise from time to time would wear these patches. Her reference to Mr Kapene Te Amo’s and Mr Denzil Kapene Te Amo’s involvement with the Mongrel Mob was a reference to these informal gatherings at their house. As far as she is aware, Mr Kapene Te Amo has never been involved in the gang activity or any crimes the Mongrel Mob is known for in New Zealand. She does not know why Mr Kapene Te Amo started wearing Mongrel Mob paraphernalia and described this behaviour as ‘like some sort of mid-life crisis’. She stated she believes the wearing of Mongrel Mob patches is ‘a small group of guys pretending to be something they are not’[11].

    [11] Tribunal file, folio 159.

21. The research article provided was a 13 page extract from a paper authored by Jarrod Gilbert and entitled ‘The Rise and Development of Gangs in New Zealand’, which was published in 2010 as part of Dr Gilbert’s doctoral thesis[12]. In summary, the article refers to the history and activity of a number of gangs in New Zealand, including the Mongrel Mob. Mr Kapene Te Amo’s representatives seek to rely on the following passage:

    While it was true that many gangs or individual gang members were involved in profit driven crime, the degree to which gangs were seen to dominate such activity appears demonstrably incorrect. Moreover, the framing of gangs as organised criminal groups tended to mask the reality that the vast majority of gangs were not primarily profit driven entities and that they existed for, and were sustained by, reasons other than the crime. These complexities were lost in the generations of political rhetoric and have not been seriously challenged since; although certain cracks in this enduring perception of gangs – in very recent times – are beginning to appear[13].

    [12] Gilbert J, The Rise and Development of Gangs in New Zealand: A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy in Sociology at the University of Canterbury (University of Canterbury, 2010)

    [13] Ibid p 582.

22. The media reports provided were submitted to demonstrate that Mongrel Mob patches and paraphernalia are readily available on the Internet.

23. Mr Kapene Te Amo’s representatives also referred to information on the website which set out the steps it is said would need to be taken for a person to be a member of a gang. The process described commences with a person being identified as a ‘prospect’, later graduating to being a patched member after they have earned the trust of chapter members. There is a hierarchical structure within a gang and associates of members of the club are not members of the gang. Mr Kapene Te Amo’s representatives submitted that this is relevant to the facts of this case as they submit Mr Kapene Te Amo may have some association with members of the Mongrel Mob but he is not a member of the gang and there is no evidence in any event that the Mongrel Mob is involved in criminal activities in Australia.

    CONSIDERATION

24. As already noted, the Minister may cancel a visa under s.116 if the Minister is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which will include matters of government policy. The questions for determination are, therefore, does the ground for cancellation exist and, if so whether the discretion should be exercised?

    Does the ground for cancellation exist?

25. Mr Kapene Te Amo’s visa was cancelled under s.116(1)(e)(i) on the basis that his presence in Australia is or may be, or would or might be, a risk to the safety of the Australian community or a segment of the Australian community. Based on the nature of the criminal charges together with the fact that Mr Kapene Te Amo had been convicted of a number of serious offences, the delegate concluded that this ‘indicates unacceptable behaviour in the Australian community and shows a disregard for Australian laws’ by Mr Kapene Te Amo. The delegate also concluded that Mr Kapene Te Amo’s actions ‘suggests violent tendencies and threatening behaviours indicating that his presence in Australia is or may pose a risk to the safety of the Australian community’.

    Submissions of Mr Kapene Te Amo’s representatives

26. Mr Kapene Te Amo’s representative contends these findings are unfair because Mr Kapene Te Amo was not given a proper opportunity to respond to the NOICC. They further contend that, as a result, it was unreasonable for the delegate to proceed to cancel Mr Kapene Te Amo’s visa without considering 'important contextual information' in assessing the level of risk Mr Kapene Te Amo posed to the community or the level of hardship he and his family would suffer.

27. Mr Kapene Te Amo’s representatives contend that the identification of the risk posed by Mr Kapene Te Amo to the Australian community is ‘speculative and lacking in particulars’. They submit that the delegate failed to take into account information that was readily available, such as, the fact Mr Kapene Te Amo’s conviction related to a single incident, there is no evidence of an established tendency or pattern of violent behaviour by Mr Kapene Te Amo in the 17 years he lived in Australia before this incident, the sentencing remarks of the County Court reflect that Mr Kapene Te Amo’s prospects for rehabilitation are good, a number of serious charges were withdrawn by the Victorian Police after the committal hearing and the charges of which he was convicted are at the lower end of the scale, as reflected in the sentencing remarks. As a result, it is submitted the delegate has not met the ‘particularly low’ standards set by the Department policy in PAM3 by failing to adequately specify a risk that Mr Kapene Te Amo may pose to the community or a segment of the community. Nor has the delegate advanced any ‘rational or logical argument setting up the possibility that [Mr Kapene Te Amo] could, or would be likely to, commit further offences or otherwise pose a safety risk to the community in the future’.

28. It is further submitted that the Tribunal should give little weight to the unproven charges which are currently before the courts in assessing with whether Mr Kapene Te Amo is or may be a risk to the Australian community. Mr Kapene Te Amo’s representatives contend the prosecution documents provided should be considered ‘cautiously and balanced fairly, taking into account that they only amount to assertions at the present point of time and the matters set out the documents are yet to be proven’. It is submitted that the Tribunal should be careful about making assumptions of guilt in relation to charges. Furthermore, if Mr Kapene Te Amo is found guilty he would be likely to be sentenced to a further term of imprisonment that would exceed 12 months. He would therefore be liable to cancellation of his visa pursuant to s.501 of the Act, resulting in his permanent exclusion from Australia. In summary, they submitted the Tribunal should not in effect pre-empt the outcome of the criminal trial.

29. In relation to the issue of whether Mr Kapene Te Amo is or may be a member of the Mongrel Mob, it is submitted the Tribunal should not draw this inference from the available evidence. This submission is that there is no evidence Mr Kapene Te Amo is a member of the Mongrel Mob although it is accepted he has some association with members of the gang. It is not illegal to be a member of a gang or any type of club in Victoria and there is no evidence before the Tribunal that the Mongrel Mob in Australia is involved in criminal activity. Media speculation about these matters is unsubstantiated and the photographs in the media reporting should not be given any weight. If Mr Kapene Te Amo had been a member, or a highly motivated associate, of the Mongrel Mob it is reasonable to infer that Victorian Police would have provided this information to the Department of Home Affairs, which could have proceeded to remove Mr Kapene Te Amo under the provisions in s.501 rather than relying on his conviction and 8 month sentence on criminal charges.

30. Mr Kapene Te Amo’s representatives submit that it is also relevant to note that Mr Kapene Te Amo, apart from the August 2015 and April 2016 matters, has otherwise been of good behaviour in the 17 years he has resided in Australia. While Mr Kapene Te Amo’s activities in associating with the Mongrel Mob, purchasing patches from the Internet and having Mongrel Mob paraphernalia may be considered foolhardy this does not of itself constitute probative evidence that Mr Kapene Te Amo poses a risk to the safety of the Australian community.

31. Mr Kapene Te Amo’s representatives further submit that any adverse evidence in the Serco risk assessment report about Mr Kapene Te Amo’s activities in detention and his risk rating should be given no weight and the evidence given by Mr Kapene Te Amo, as corroborated by his partner, should be accepted.

32. In summary, it is contended the Tribunal cannot not be satisfied there is sufficient evidence to warrant a finding that Mr Kapene Te Amo’s presence in Australia ‘is or may be’ a risk to the safety of the Australian community.

    Findings

33. The question of whether the decision of the delegate was unfair or in error is largely irrelevant to the Tribunal. While the decision of the delegate may identify some if not all of the relevant issues and matters that require determination, the task of the Tribunal on review is to make the correct or preferable decision based on all the information made available to the Tribunal.

1. In conducting a review, the Tribunal considers the matter afresh based on the material before it. The Tribunal is not bound by the findings of the delegate[14] and can rectify any procedural errors or flaws in the process or reasoning that are not essential to establish the jurisdiction to exercise the power. In this case, the delegate sought to provide Mr Kapene Te Amo with an opportunity to respond to the NOICC. He was served in accordance with provisions of the Act and while we accept that he did not receive the NOICC and therefore did not respond, this does not invalidate the exercise of the power under s.116 of the Act.

   [14] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

100.   The Tribunal is conducting merits review and is bound to provide Mr Kapene Te Amo with the opportunity to respond to the question of whether his visa should remain cancelled in the circumstances of his case. Mr Kapene Te Amo is entitled to provide, and in fact has provided, evidence and submissions in support of his claim that his visa should not be cancelled.

101.   Relevantly, Mr Kapene Te Amo has been given the opportunity to provide the ‘important contextual information’ that would have been provided if he had responded to the NOICC. This material is before the Tribunal and we are bound to consider it. We therefore reject the submission that the failure of the Department to personally serve Mr Kapene Te Amo with the NOICC and to delay making a decision pending his response is determinative or indeed relevant to the outcome of this review.

102.   The question is whether we are satisfied, based on the material before us, that Mr Kapene Te Amo’s continued presence in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. There has been no issue raised, either in the decision of the delegate or in the material before us, that Mr Kapene Te Amo’s presence creates a risk to the health of the Australian community. Nor is there any assertion made that he is a risk to the ‘good order’ of the Australian community. As noted in PAM3, this risk contemplates concern about activities which have an impact on public activities or manifest themselves in a public way. Examples of when a delegate may be satisfied a person’s presence in Australia poses a risk to the good order of the Australian community or a segment of the Australian community are cases where the visa holder is inciting people in the community to violence or where the visa holder is publicly advocating violence against a particular group. There is no evidence of this on the material before us nor was this the basis for the decision of the delegate. We are therefore not satisfied Mr Kapene Te Amo is or may be or would or might be a risk to the health or good order of the Australian community or a segment of the Australian community.

103.   It is clear from the decision record, the NOICC, the material before us and the submissions of Mr Kapene Te Amo’s representatives that the question for determination in this case is whether the presence of Mr Kapene Te Amo is or may be a risk to the safety of the Australian community or a segment of the Australian community.

104.   As noted in PAM3 the term ‘safety’ has an ordinary meaning which includes ‘freedom from injury or danger’. It is therefore considered that the relevant risks from which the Australian community, or a segment of the community, are to be protected from include ‘injury, danger and other forms of harm (such as physical harm)’. We agree with this commentary, which is consistent with a plain and common sense reading of the provision.

105.   There is no definition of ‘risk’ in the Act or Regulations and as such the ordinary meaning applies, namely the chance of injury, loss or hazard (refer generally, the Macquarie Dictionary, revised 3^rd edition, 2001).

106. Subsection 116(1)(e) speaks of a ‘risk’ that the presence of a visa holder ‘is or may be’ or, alternatively, ‘would or might be’ to the safety of the Australian community. The first limb (‘is or may be’) is addressed to circumstances where the applicant is present in Australia and the second limb (‘would or might be’) is addressed to the circumstances where the applicant is outside of Australia: refer Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41].

107. Subsection 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce the concept of ‘may be’ or ‘might be’ and it is self-evident from the plain English meaning of these words that the threshold to establish the ground for cancellation was lowered as a result of the amendment (refer to the Explanatory Memorandum to the Migration Amendment (Character and General visa Cancellation) Bill 2014 and Gong v MIBP at [40]). Prior to the amendment, to engage the power under s.116(1)(e) the decision-maker needed to be satisfied that the presence of the visa holder was a risk to safety of the Australian community or, if they were outside Australia, their presence within Australia would be a risk. In contrast, the expressions ‘may be’ or ‘might be’ connote something less and include ‘the possibility’ of harm.

108. The concept of ‘risk’ has an element of futurity and in considering the question of whether a visa holder ‘may be’ a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct. This includes conduct which is the subject of criminal convictions and may include alleged conduct which is the subject of unproven criminal charges (refer Gong v MIBP at [41]). It may also include probative and credible evidence of conduct or activity that is not the subject of convictions or charges but which nonetheless raises concerns about whether a visa holder may harm members of the Australian community or a segment of the Australian community. For instance, the matters identified by Serco while Mr Kapene Te Amo was in immigration detention may, if established, tend to show that he is violent or aggressive. Similarly, Mr Kapene Te Amo’s involvement with the Mongrel Mob may also be relevant to the question of whether he may be a risk to the Australian community. However, this is dependent on there being probative evidence of Mr Kapene Te Amo’s involvement in the Mongrel Mob and the extent to which there is evidence the Mongrel Mob has established itself in Melbourne and is engaged in criminal activities. Mr Kapene Te Amo’s representative contends that there is no probative evidence of these matters.

109.   It is contended that the incidents identified by Serco in its report can be explained, the conduct which is the subject of his criminal charges has not been established and the conduct which is the subject of the convictions are at the lower end of the scale and involved an isolated incident.

110.   To understand Mr Kapene Te Amo’s past conduct and the nature of his previous offending, it is important to consider the sentencing remarks of his Honour Judge Taft in the County Court on 4 August 2017. His Honour referred to Mr Kapene Te Amo’s previous history in his sentencing at [2] as follows:

2You have now spent 486 days in custody. Although you have a criminal record which is quite extensive, that offending occurred in New Zealand and took place when you were much younger. You have a history of significant offending between 1987 and 1999. Much of that offending concerned driving offences and for the most part, the second component of your offending has concerned dishonesty offences. You have served some terms of imprisonment but those have been limited to a five months sentence in 1992 and a further term of imprisonment for driving while disqualified in 1995.

111.   His Honour then went on to deal with the circumstances of Mr Kapene Te Amo’s offending detailed in the prosecution opening, to which Mr Kapene Te Amo pleaded guilty, as follows (at [6] to [9]):

6In March 2016, a dispute arose between yourself and the victim. It focused upon a belief that you were owed money. On 30 March 2016 at about 5pm, you attended his factory in a car driven by your son. A disagreement broke out. The common assault charge arises from you grabbing the victim around the throat and putting him in a headlock and lifting him off the ground. He suffered a bruise and swelling to his left cheek and soreness to his neck.

7You were not satisfied with that assault. You proceeded to take $8,000 from a leather bag which was on a workbench and belonged to the victim. You were still not satisfied. You demanded that the victim get into a car and drive to a bank. You forced him to drive while you sat in the front passenger seat and made threatening remarks. It was intended by you that the victim would use his credit card to withdraw money from an ATM. It turned out that his credit card was still in the factory. You then demanded to know where the victim's business credit card was.

8You forced him to return to the factory to find it. When both of you got back to the factory, you grabbed the victim by the back of the neck and forced him to the front factory door. Fortunately, the victim was able to escape. You pursued him and demanded that he get back into your car or you would go to his house. The victim kept running and finally reached a friend's house where 000 was called.

9The theft charge arises from your taking the $8,000 which belonged to the victim. The false imprisonment charge is the most significant episode of offending before this court and occurs in circumstances where you physically intimidated the victim, confined him, and threatened him for some 20 to 30 minutes. You are a very large man and appear to be a physically powerful man. A victim impact statement has not been provided but one can only imagine the terror that any person would feel if confronted by that reality[15].

[15] Tribunal file, folios 79 and 80 (back).

112.   In sentencing Mr Kapene Te Amo, his Honour took account of the plea of guilty which was offered at a relatively early stage of the proceeding and observed as follows at [14] and [15]:

14I put particular weight on the fact that when assessing your prospects of rehabilitation (sic) you have as I have said, a good work record, a supportive family, a stable relationship, the prospect of work and an appreciation that you should not engage in debt collecting in the future.

15You have been on remand for an extensive period indeed something in the order of 14 months. That experience no doubt has been salutary. Some discussion occurred as to any risk that might attach to deportation. Those matters are administrative decisions and remain external to the domain of this court. However, I do accept that whilst in custody, your time has been made more difficult by the level of uncertainty as to your future[16].

[16] Tribunal file, folio 79 (back)

113.   The criminal conduct which is the subject of the criminal convictions, as described by Judge Taft, is serious. It reveals a level of violence and disregard for the victim which is clearly unacceptable and shows a disregard for the law. The offending took place less than two years ago and while it has been adjudged at the lower end of the scale, false imprisonment together with threats and intimidation are ‘significant’ matters. As his Honour remarked, one can only imagine the terror the victim must have felt when confronted with these threats[17]. Moreover, there is evidence the victim was physically harmed as a result of the incident. While his Honour placed weight on Mr Kapene Te Amo’s good work record and his family support in considering his prospects of rehabilitation, it is also clear his Honour had regard to the extensive period Mr Kapene Te Amo had been in custody on remand in sentencing him to eight months imprisonment.

[17] Tribunal file, folio 79 at paragraph [9].

114.   When giving evidence about these matters at the hearing before the Tribunal, Mr Kapene Te Amo sought to diminish the seriousness of his offending. He expressed remorse but nonetheless denied he had lifted the victim off the ground and caused injury. We do not accept that Mr Kapene Te Amo gave an accurate account of the 2016 incident in his evidence. He did not present as a witness of truth through much of his testimony and, most significantly, his evidence is inconsistent with the sentencing remarks of Judge Taft. For instance, when the Tribunal questioned Mr Kapene Te Amo about the difference between the sentencing remarks and his explanation to the Tribunal, Mr Kapene Te Amo told the Tribunal he pleaded guilty to some of the charges but not to the summary. The Tribunal finds this is not a credible or reasonable explanation as Mr Kapene Te Amo was sentenced on the basis of his Honour, Judge Taft’s findings which are reflected in his Honour’s sentencing remarks.

115.   Mr Kapene Te Amo was 45 years old when the offending occurred. He was not a young man, nor is there evidence he was under the influence of alcohol or drugs or that there were other mitigating factors. Mr Kapene Te Amo was involved in debt collecting for the victim, was himself unpaid and used force and other illegal means, including the theft of a large sum of money, to recover what he believed was owing to him. Despite Mr Kapene Te Amo’s evidence to the Tribunal that he came to Australia to give his children a better life, and we accept his evidence about these intentions, it is clear from the sentencing remarks of Judge Taft that he nonetheless involved Mr Denzil Kapene Te Amo in the criminal offending.

116. Based on the evidence before us, we do not accept that the criminal conduct in 2016 was an ‘isolated’ incident. Mr Kapene Te Amo had an extensive criminal record before he arrived in Australia, which he acknowledges. While this record primarily involved driving, drink-driving and drug offences when he was a younger man, Mr Kapene Te Amo served extensive periods in periodic detention or imprisonment in the period between 1987 and 1999. He has been charged with further serious offences relating to an incident in 2015, which also allegedly involve Mr Denzil Kapene Te Amo. Mr Kapene Te Amo has not been convicted of these offences but the allegations made are serious. The offences are indictable and, if established, carry heavy potential criminal sentences. This is also acknowledged by Mr Kapene Te Amo’s representative, who submits that if Mr Kapene Te Amo is convicted of these offences it is likely any sentence will exceed 12 months and he will be liable to have his visa mandatorily cancelled under the provisions in s.501.

117.   We accept the representative’s submissions that these charges are not proven. We also accept that under the criminal justice system a person is innocent until proven guilty. We accept the proposition that the Tribunal should exercise ‘caution’ in the weight that should be given to the charges and the prosecution’s opening statement provided to the Tribunal by Mr Kapene Te Amo. As noted in PAM3 ‘unlike a conviction, a charge cannot be equated with guilt’. We agree with this commentary.

118.   However, this does not mean that the charges and allegations made by police should be given no weight in assessing whether Mr Kapene Te Amo is or may be a risk to the safety of the Australian community or a segment of the Australian community. As observed by Smith J in Gong v MIBP at [45], s.116(1)(e) does not require ‘a determination one way or the other, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence’. Indeed, this should be avoided and it is not the role of the Tribunal to conduct a quasi-criminal hearing to form a view about the strength of the prosecution case prior to trial. This is not only unfair, because of the potential exposure of the visa holder to self-incrimination, but is unwise. Tribunal members generally do not have the skills or experience to embark on such an exercise. Despite this, the laying of charges by police may support a finding that there is a possibility the events which are the subject of the charges occurred. As such, charges that are very serious in nature may carry significant weight when assessing risk for the purposes of establishing whether the ground for cancellation under s.116(1)(e) exists. In this case, the pending charges involve issues of personal liberty and physical harm to another. This must carry some weight in assessing risk.

119.   We accept Mr Kapene Te Amo’s evidence and the evidence of Ms Nuku about the incidents which are alleged to have occurred while Mr Kapene Te Amo has been in immigration detention. We are therefore not satisfied that these incidents support a finding that Mr Kapene Te Amo is or may be a risk to safety of the Australian community.

120.   Mr Kapene Te Amo’s alleged involvement with the Mongrel Mob and the relevance or weight that this should be given in assessing risk is speculative. The evidence is to the effect that Mr Kapene Te Amo knows a number of people who are members of the Mongrel Mob in New Zealand and he may also associate with people who are or claim to be members of the Mongrel Mob in Melbourne.

121.   Mr Kapene Te Amo has an interest in Mongrel Mob paraphernalia and his interest was sufficient to motivate him to buy T-shirts and patches online, wear a Mongrel Mob vest while riding his motorcycle and, more significantly, have Mongrel Mob insignias tattooed on his body. Mr Kapene Te Amo was not truthful about his involvement with the Mongrel Mob and concedes he lied to the Tribunal about this. He explained his evidence on the basis that he was concerned about being seen to be involved with the Mongrel Mob and the problems this would cause him. Mr Kapene Te Amo was not truthful but did not explain his position until his false evidence was later exposed by the evidence of his son and partner. This does not reflect well on Mr Kapene Te Amo’s character or his credibility more generally. However, we accept the submissions made by Mr Kapene Te Amo’s representatives about the weight that should be given to his evidence about his involvement in the Mongrel Mob. The Mongrel Mob is not an illegal gang in Victoria and there was no evidence before the Tribunal, other than the media speculation, that the Mongrel Mob is involved in criminal activities in Victoria. In the absence of probative evidence on these matters, we give this little weight in assessing whether Mr Kapene Te Amo is or may be a risk to the safety of the Australian community or a segment of the community. Relevantly, this was a matter within the knowledge of the delegate because the media reports were contained in the Department file. The delegate did not appear to find this compelling or probative because it is not referred to in the decision record nor was it raised with Mr Kapene Te Amo in the NOICC.

122.   In summary, the material before us in relation to Mr Kapene Te Amo’s activities while in detention and his involvement with the Mongrel Mob do not advance the question of whether Mr Kapene Te Amo is or may be a risk to the safety of the Australian community. The most compelling evidence before us about this issue is the nature of Mr Kapene Te Amo’s convictions, the evidence of the underlying facts that led to those convictions and the sentencing remarks of his Honour Judge Taft. In addition, there is evidence Mr Kapene Te Amo has been charged with other serious offences of a similar nature, which while unproven, are relevant in assessing the question of whether Mr Kapene Te Amo is, but more particularly, may be a risk to the safety of the Australian community. As already noted, these charges are serious and, if established, would be contrary to the concept of safety to the Australian community. Prior to these incidents, Mr Kapene Te Amo appears to have had a clean record in Australia. There is no dispute Mr Kapene Te Amo struggled before he came to Australia with repeated criminal offending, albeit mainly low level offences, from his late teens until he was about 28 years old. Even though there is no evidence of any criminal or violent behaviour from 2001 until 2015 (or at least 2016 in respect of the proven offences), the convictions and allegations over the last few years are concerning and otherwise unexplained. Based on the material before us and considering the matter carefully, we are therefore satisfied that there is sufficient evidence Mr Kapene Te Amo is, or at the very least, may be a risk to the safety of the Australian community or a segment of the Australian community.

123. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

124.   In considering whether to exercise its discretion to cancel Mr Kapene Te Amo’s visa, we have had regard to the relevant circumstances including but not limited to the matters identified in the Department’s PAM 3 ‘General visa cancellation powers’.

125.   We accept that Mr Kapene Te Amo’s purpose for remaining in Australia is to live where he has lived for the past 17 years with his family. Accordingly, there is a compelling reason for him to remain in Australia and this weighs against cancellation.

126.   There is no evidence Mr Kapene Te Amo has breached his visa conditions. There is some evidence, as noted above, that he has behaved inappropriately towards the Department or its agents, at least whilst in immigration detention. However, we accept the explanations of Mr Kapene Te Amo and Ms Nuku for these incidents. These considerations, on balance, weigh against cancellation.

127.   There is no evidence, nor does Mr Kapene Te Amo make a claim, that the cancellation of his visa would breach Australia’s international obligations. Accordingly, this consideration is neutral.

128.   The main issues that fall for consideration that are relevant to the exercise of the discretion in this case are the degree of hardship that may be caused to both Mr Kapene Te Amo and his family, the mandatory legal consequences of cancellation and the circumstances in which the ground for cancellation arose. Mr Kapene Te Amo’s representative also raised the potential hardship to Mr Cooper as a relevant consideration. These matters are considered below.

Hardship

129.   We accept that there will be significant hardship to Mr Kapene Te Amo if he is forced to leave Australia and be separated from his family. This assumes, Ms Nuku and Mr Denzil Kapene Te Amo will not return to New Zealand with him. Mr Kapene Te Amo’s son Harley-Rei is currently living in New Zealand.

130.   We also accept it may be difficult for Mr Kapene Te Amo to find employment in New Zealand and he will be separated from regular personal contact with his sister, Lorana Foster, and her children.

131.   Mr Kapene Te Amo’s evidence is that, other than Harley-Rei, he does not have close links to his remaining family in New Zealand. He claims his parents were abusive and that his early offending was linked to difficulties in his early years. In the absence of evidence to the contrary, we accept his evidence. We also accept the evidence of Ms Nuku that she will find it difficult to remain in Australia without the financial and emotional support provided by Mr Kapene Te Amo. They have been together for many years and apparently sustained their relationship which, according to Ms Nuku has had periods of stress, for over 30 years. This is significant. We also accept that Mr Kapene Te Amo and Mr Denzil Kapene Te Amo are close and there will be hardship to both of them in being separated.

132.   However, this hardship must be put in context. Mr Kapene Te Amo, through his own actions, has been separated from his family and has been unable to financially support them or contribute to the household for approximately two years. He has either been in custody or immigration detention for much of this time. Ms Nuku has been able to sustain her life in Australia during this period and has full-time employment. Ms Nuku impressed as a witness of truth and it is admirable that she has continued to support the family and Mr Kapene Te Amo while he has been in detention. We accept Ms Nuku will need to make the difficult choice on whether she stays in Australia or whether she returns to New Zealand with Mr Kapene Te Amo if his visa remains cancelled and he is deported. We place significant weight on the hardship which we accept Ms Nuku will suffer if Mr Kapene Te Amo is forced to return to New Zealand. If Ms Nuku decides not to return to New Zealand, she will be separated from her partner of 32 years. If she returns, she may be separated from Mr Denzil Kapene Te Amo, her sister-in-law, her nieces and her mother. She will have to give up her employment and will need to find work in New Zealand. Both Mr Kapene Te Amo and Ms Nuku have given evidence that work opportunities in New Zealand before they came to Australia were limited.

133.   There is no evidence before the Tribunal about the opportunities in New Zealand at this point of time and we note, as a general observation, that the New Zealand economy has flourished in recent years. However, little can be drawn from this and we accept that both Mr Kapene Te Amo and Ms Nuku may find new employment difficult to obtain at their age.

134.   While we accept Ms Lorana Foster and her children will miss Mr Kapene Te Amo and, if she returns to New Zealand, Ms Nuku, we do not accept that Ms Foster’s career in the police force will suffer or be in jeopardy. There is no evidence to support this claim apart from the assertion made by Mr Kapene Te Amo. Childcare is available in Australia and it is not persuasive to speculate about what may happen to Ms Foster’s career if Mr Kapene Te Amo or Ms Nuku, or both of them, return to New Zealand. We therefore give this claim little weight.

135.   We accept Mr Cooper will be inconvenienced by not having Mr Kapene Te Amo, a person who he trusts, available for him to drive his second truck. However, this is a commercial decision Mr Cooper made and it is ultimately a matter for him how he manages his business affairs. We accept Mr Kapene Te Amo assisted him with his children on occasion. However, Mr Kapene Te Amo has been unable to assist Mr Cooper for some time while he has been in detention and prison. We give the hardship that Mr Cooper is claimed to suffer little weight.

136.   The separation of Mr Kapene Te Amo from his family and, if Ms Nuku returns to New Zealand, her separation, is a significant factor that weighs against cancellation. However, for reasons later outlined, the separation may not be indefinite. Relevantly, it is always open to members of the family to return to New Zealand to visit Mr Kapene Te Amo, and Ms Nuku if she returns. Travel to New Zealand from Australia is relatively easy and economical. As such, the impact of the separation is somewhat ameliorated by the close relations and proximity between Australia and New Zealand.

137.   When assessing the level of hardship, it is relevant to take into account that Mr Kapene Te Amo will not be returning to a country with which he is unfamiliar. This is not a case where Mr Kapene Te Amo came to Australia as child. He spent his formative years in New Zealand. He was educated and worked there and his children were born in New Zealand. While the forced separation weighs against cancellation this must be balanced against the other factors.

Legal consequences

138.   If Mr Kapene Te Amo’s visa remains cancelled, it is unlikely he will be required to leave Australia until after his trial in October 2018. Indeed, his bail conditions require him to stay pending the trial. If Mr Kapene Te Amo’s visa remains cancelled, he will remain in immigration detention pending his trial. We accept it may be more difficult for him to prepare for his criminal trial whilst in detention than in the community. However, we note that individuals who are on remand and not bailed face similar difficulties in preparing for trial.

139.   Mr Kapene Te Amo will either be convicted or acquitted of the alleged offences arising from the incident in 2015.

140.   If he is acquitted and his visa remains cancel, Mr Kapene Te Amo will be required to leave Australia. We accept the submissions of Mr Kapene Te Amo’s representative that he will not be able to return to Australia under a special category visa because he would not satisfy the criteria in s.32 of the Act.

141.   Section 32 sets out the criteria for a special category visa and relevantly provides that the visa should be granted if the Minister is satisfied the applicant is a non-citizen, who is a New Zealand citizen and holds a New Zealand passport and is neither a behaviour nor health concern non-citizen. Subsection 5(1) of the Act defines a ‘behaviour concern non-citizen’ as follows:

"behaviour concern non-citizen" means a non-citizen who:

(a)   has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

(b)   has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

(i)     any period concurrent with part of a longer period is disregarded; and

(ii)    any periods not disregarded that are concurrent with each other are treated as one period;

whether or not:

(iii)   the crimes were of the same kind; or

(iv)   the crimes were committed at the same time; or

(v)    the convictions were at the same time; or

(vi)   the sentencings were at the same time; or

(vii)  the periods were consecutive; or

(c)   has been charged with a crime and either:

(i)     found guilty of having committed the crime while of unsound mind; or

(ii)    acquitted on the ground that the crime was committed while the person was of unsound mind;

(d)   has been removed or deported from Australia or removed or deported from another country; or

(e)   has been excluded from another country in prescribed circumstances;

[Emphasis in original]

142.   Having regard to the definition of a ‘behaviour concern non-citizen’ in s.5(1) of the Act, we accept the submissions of Mr Kapene Te Amo’s representatives that he would fall within the definition of a behaviour concern non-citizen in s.5(1)(b) because he has been convicted of two or more crimes and sentenced to imprisonment for a period that adds up to at least one year. His term of imprisonment in Australia was eight months and his previous term of imprisonment in New Zealand was five months. This is a total of 13 months.

143.   Alternatively, it is submitted that if Mr Kapene Te Amo’s visa remains cancelled it is likely the Department will arrange for his return to New Zealand rather than grant him a bridging visa for the purpose of Mr Kapene Te Amo arranging his own travel. If this is the case, Mr Kapene Te Amo will be removed from Australia under s.198 of the Act which means he would fall within the definition of a behaviour concern non-citizen in s.5(1)(d). While there is no evidence about whether this is the case, because the Department is not a party to these proceedings nor does it make submissions on these issues, it is difficult for us to speculate on what the Department might do but we accept this is a possibility.

144.   There is an alternative criterion under s.32 but this criterion does not apply in these circumstances. As such, we accept the submissions that Mr Kapene Te Amo is unlikely to be able to return to Australia through a special category visa, regardless of the outcome of his criminal trial.

145. Mr Kapene Te Amo’s representatives accept that it would be possible for him to return to Australia under a subclass 309/100 partner visa. This is because Ms Nuku arrived in Australia prior to 26 February 2001 and is therefore considered an eligible New Zealand citizen who could sponsor Mr Kapene Te Amo for a partner visa. As conceded by Mr Kapene Te Amo’s representatives, this visa is not subject to the public interest criteria in Schedule 4 of the Migration Regulations, namely public interest criteria 4014 or 4013, which provide for a three year exclusion period on applications where a visa has been cancelled, but he would be required to meet special return criteria 5002 under cl.309.226 of Schedule 2 to the Regulations.

146.   The Special return criterion 5002 relevantly provides, in summary, that if a person has been removed from Australia under s.198 of the Act they could not make an application to return within 12 months after removal unless they are able to establish compassionate or compelling circumstances. The effect of this is that if Mr Kapene Te Amo’s visa remains cancelled and he is removed from Australia after his trial, he would not be able to make an application to return to Australia under a partner visa for at least 12 months.

147. It is also submitted that even if Mr Kapene Te Amo was to make such an application, it is likely he would face refusal under s.501 of the Act given his previous criminal convictions and his evidence about his limited association with members of the Mongrel Mob. As already noted, the Department does not appear as a party in these proceedings or make submissions on these matters and it is therefore difficult for us to speculate on what the Department might do in these circumstances. However, we accept this is a possibility but note there is a review mechanism to the General Division of this Tribunal in the event of a refusal under s.501 of the Act.

148. It is further submitted Mr Kapene Te Amo does not appear to meet any of the skilled migration requirements and the only other visa he is likely to be able to meet would be a visitor visa for the purposes of visiting his family in Australia. However, given the cancellation, he faces the prospect of a three-year exclusion due to the operation of public interest criteria 4013 under cl.600.213(1) of Schedule 2 to the Regulations. It is possible for the Department or the Minister to waive the bar if there are compassionate or compelling circumstances under cl.4013(1)(b) of Schedule 4 to the Regulations but it is submitted that this bar is difficult to meet in Mr Kapene Te Amo’s circumstances.

149. In summary, it is submitted, and we accept, that if Mr Kapene Te Amo is acquitted of the charges arising from the 2015 matter but nonetheless deported, there will be limited or at least more complicated prospects for him returning to Australia. As such, it is possible that the period of separation between Mr Kapene Te Amo and his family in Australia will be significant. It is also submitted it is possible he will not be able to return if, for instance, the Minister refuses his visa under s.501. We accept this is possible although note there are further appeal mechanisms available to Mr Kapene Te Amo if he is refused entry to Australia.

150. If Mr Kapene Te Amo is convicted of the charges that remain from the 2015 matter, it is conceded that, but for the current cancellation, he would be exposed to mandatory cancellation under s.501(3A) of the Act. If we set aside the cancellation of Mr Kapene Te Amo’s visa taking into account the possibility he may be acquitted, Mr Kapene Te Amo would be permanently excluded from returning to Australia if he is convicted and the cancellation is not revoked. He would therefore potentially be in a worse position than if we decided his visa should remain cancelled.

151.   In summary, we accept that the legal consequences arising from Mr Kapene Te Amo’s visa remaining cancelled are potentially detrimental to him returning to Australia once his criminal case is finalised and it is therefore possible he will be separated from his family for extended periods. However, the position is complicated and depends on various decisions being made by the Minister, or his delegate. As already noted, Mr Kapene Te Amo may be more disadvantaged if the decision to cancel his visa is set aside but he is subsequently convicted of the offences for which he is charged. While it is difficult to speculate on these matters, on balance the mandatory legal consequences weigh against cancellation. It is no answer to await the outcome of the criminal case by adjourning the proceedings indefinitely or, at least until November 2018. First, this was not requested by Mr Kapene Te Amo’s representatives, who provided competent and comprehensive written and oral submissions. Secondly, Mr Kapene Te Amo is in detention and would remain so pending his criminal trial. An adjournment would not assist in this regard and it is possible the trial may be delayed or protracted. Thirdly, the outcome of his criminal case is not determinative of the exercise of our discretion in this case.

Circumstances in which the ground of cancellation arose

152.   One of the relevant considerations for the Tribunal in exercising its discretion are the circumstances in which the ground for cancellation arose. The cancellation arose because of concerns Mr Kapene Te Amo is or may be a risk to the safety of the Australian community or a segment of the Australian community arising out of his charges but more particularly the convictions in August 2017. While we note that Judge Taft commented favourably on Mr Kapene Te Amo’s prospects of rehabilitation, having regard to the nature and seriousness of the offences of which Mr Kapene Te Amo is convicted, the potential risks to the Australian community of Mr Kapene Te Amo remaining in Australia weigh strongly in favour of cancellation. The fact there are serious criminal charges, also weighs in favour of cancellation but carries less weight given the charges are unproven.

Conclusion

153.   Having regard to all of the material before us and weighing those matters carefully, we have concluded we should exercise the discretion in favour of Mr Kapene Te Amo’s visa remaining cancelled. We have given significant weight to the seriousness and nature of the offending, the sentencing remarks of Judge Taft and the possibility that the conduct in 2016 was not an isolated incident. While we accept there is no evidence Mr Kapene Te Amo has committed other violent crimes for 14 and possibly 15 of the 17 years he has been in Australia and his prospects of rehabilitation were taken into account by Judge Taft in sentencing, this does not diminish our concerns about the existence of the potential risks we have identified.  

154. Against this, we have had regard to the hardship that will be faced by Mr Kapene Te Amo and his family caused by separation and the potential mandatory legal consequences arising from this cancellation. However, this hardship is ameliorated to some extent by the factors referred to above, including the possibility that Mr Kapene Te Amo’s family will be reunited in Australia at some stage through an application for a partner visa. While we accept there may be delay and there is a possibility the visa will be refused under s.501, these matters are speculative and are subject to a further review by a different division of the Tribunal in any event.

155.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

156.   The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Jan Redfern
Deputy President

Michael Ison
Senior Member