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

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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kapene Te Amo (Migration)

Details

AGLC: Kapene Te Amo (Migration) [2018] AATA 2214
Case: [2018] AATA 2214
Decision Date: 9 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of Mr Kapene Te Amo's Subclass 444 Special Category (Temporary) visa. The cancellation was based on section 116(1)(e)(ii) of the *Migration Act 1958*, which allows for visa cancellation if the holder is, or may be, a risk to the health, safety, or welfare of an individual or individuals. Mr Te Amo had been convicted of criminal charges and sentenced to less than 12 months imprisonment, and was also facing further criminal charges. Allegations of gang involvement were also considered.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) of the *Migration Act 1958* was established, and if so, whether the power to cancel the visa should be exercised. This involved assessing the risk Mr Te Amo posed to the Australian community, considering the nature of his criminal convictions, his criminal history in New Zealand, and allegations of his involvement with the Mongrel Mob. The Tribunal also had to consider the degree of hardship to Mr Te Amo and his family, the mandatory legal consequences of cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal reasoned that while Mr Te Amo had been convicted of serious offences, including kidnapping and extortion, and had a prior criminal history in New Zealand, the evidence regarding his alleged involvement with the Mongrel Mob was not sufficiently probative. The Tribunal noted that the definition of gang membership provided by Mr Te Amo's representatives suggested a structured process, and there was no evidence that the Mongrel Mob itself was involved in criminal activities in Australia. Despite the lack of strong evidence for gang involvement, the Tribunal found that the nature of the criminal charges and convictions indicated unacceptable behaviour and a disregard for Australian laws, suggesting violent tendencies and threatening behaviour that could pose a risk to the safety of the Australian community. The Tribunal also considered the submissions made on behalf of Mr Te Amo regarding the lack of a pattern of violent behaviour in Australia over 17 years, the prospects for rehabilitation, and the fact that some serious charges were withdrawn.

Ultimately, the Tribunal affirmed the decision to cancel Mr Te Amo's visa. While acknowledging the hardship to Mr Te Amo and his family, the Tribunal concluded that the ground for cancellation was established based on his criminal conduct and the potential risk he posed to the community. The Tribunal found that the delegate had adequately considered the relevant circumstances in exercising the discretion to cancel the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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? 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 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. 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’.