KIIKII BOAZA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2009] AATA 600
•14 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2451
GENERAL ADMINISTRATIVE DIVISION ) Re KIIKII BOAZA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member M D Allen Date14 August 2009
PlaceParramatta
Decision The decision under review is AFFIRMED ................[sgd]..............................
M D Allen
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP: Deportation of non-citizen - violent criminal offences - protection of Australian community outweighing all other factors - decision under review affirmed.
LEGISLATION
Migration Act 1958: Ss 499, 501(2), 501(6), 501(7)(c)
Ministerial Direction Number 41
CASE LAW
Re Stone and Minister for Immigration and Ethnic Affairs (1980-81) 3 ALN; N 129
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198
REASONS FOR DECISION
Senior Member M D Allen 1. On 5 February 1999 before Cummins J in the Supreme Court of Victoria, following a plea of guilty, the Applicant was sentenced to fourteen years imprisonment with a minimum term of eleven years on one count of attempted murder.
2. Although chronologically earlier, as regards the offences, on 26 August 1999, following conviction upon a trial by jury, the Applicant was sentenced by Anderson DCJ to an effective term of 18 months imprisonment cumulative upon the term imposed by Cummins J. The sentence imposed by Anderson DCJ followed a jury’s finding that the Applicant was guilty of one count of common assault and one count of false imprisonment upon his victim, a Ms W.
3. Following the termination of the Applicant’s minimum term of imprisonment, the Applicant was released on parole on the 31st day of June 2009. However on 25 May 2009, a delegate of the Respondent had cancelled the Applicant’s residents visa pursuant to sub section 501(2) of the Migration Act 1958 (“the MA”).
4. On 2 June 2009, the Applicant lodged with the Tribunal an application seeking review of the decision to cancel his residents visa.
5. Subsection 501(2) of the MA states:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
6. Whereas subsection 501(6) of the MA states inter alia:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character…”
7. “Substantial criminal record” is defined by paragraph 507(7)(c) of the MA as where a person has been sentenced to a term of imprisonment for 12 months or more.
8. In exercising the discretion whether or not to cancel the Applicant’s visa, I am required pursuant to section 499 of the MA, to take into account any written Directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
9. At the time the delegate made his decision in this matter, the Ministerial Direction in force in was Direction 21. Direction 41 took effect from 15 June 2009. There are no transitional provisions in Direction 41 and as it is more favourable to criminals than Direction 21, it is the Direction to be applied in these proceedings. Cf Repatriation Commission v Gorton (2001) 11 FCR 321.
10. Direction 41 states that there are four primary considerations to the exercise of my discretion and seven other considerations.
The Character Test
11. There can be no doubt that the Applicant fails the character test as he was sentenced to a term of imprisonment exceeding 12 months, namely 14 years with a minimum of 11.
12. The primary consideration in deciding whether or not to cancel a persons visa are set out as paragraph 10 of Part B of Direction 41. Those considerations are:
“(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations…”
13. In taking these considerations into account regard must ultimately be had to the objectives of Direction 41, as set out in paragraph 5.1 of the said Direction, namely:
“(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The Protection of the Community
14. Clause 10.0 of Direction 41 states:
“(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
15. As to the seriousness of the Applicant’s conduct, the offences committed by him were truly horrendous.
16. In sentencing the Applicant on the count of attempted murder, Cummins J said:
“The law sets its face against men using violence to resolve their emotional problems with women. Violence will not be tolerated. This case is one of extreme violence.
On 3 November 1997 you, Mr Boaza, attempted to kill a 25 year old women, …, in a public place, Greensborough Road, Macleod, outside the Watsonia Army Barracks. But for the heroic intervention of a number of ordinary citizens who were driving by, you would have killed her. Even with that heroic intervention, she was in such an extreme state after your attack that it was only by the highly professional services of the Austin and Repatriation Medical Centre that her life was saved.
The attempted murder of her was planned by you. It was premeditated. You entered the scene carrying the attempted murder weapon. When a number of citizens sought to stop you, you would not be diverted from your demonstrated intention to kill her. It was only ultimately when you were physically overpowered by a number of men that you were forced to stop in your deliberate persistence to kill her.”
17. Cummins J concluded his sentencing remarks by saying:
“The intention to kill is the most serious intention known to the criminal law. The intention to kill is at the centre of the crime of attempted murder. Further, this was a planned crime. You had a murder weapon with you, you cut off her vehicle, threw her down the embankment and stabbed her in the heart. Next, you were undeterred by intervention of heroic citizens. Next, when you thought they were not looking, you tried to move stealthily towards the victim. Next, even when the police intervened, you kept the knife in your hand, hoping to effect your purpose until, in the end, it was dropped by you involuntarily as the handcuffs were put on. At no time did you desist , even when called upon verbally and physically to do so. Finally, it is only by the intervention of heroic citizens and then medical help that your purpose was not fulfilled. It almost was. So this is the worse category of the most serious offence to the criminal: the intent to kill.”
18. As stated above, the assault and false imprisonment charge arose from events that were earlier in time to those giving rise to the attempted murder count. In sentencing the Applicant, in relation to the former charge, Anderson DCJ said:
“The accused’s conduct did not indicate significant remorse…the accused had maintained a plea of not guilty causing Ms… and Ms…to give evidence and be cross examined. Even after his plea of guilty in the matter involving … he still refused to acknowledge his conduct in the present case…The physical assault on Ms… was violent and unrelenting. The accused’s object was to force her compliance with his unrealistic scheme to persuade Ms…to stay in a relationship with him. The effect of the violent assault was to ensure that Ms… went with the accused to the Watsonia RSL. During the trip by car, the accused maintained his intimidation of Ms…including a threat to kill her, if she were unsuccessful in persuading Ms… to see things his way. It was clear from the distress which she exhibited upon her arrival at the RSL that the assault and the false imprisonment was a disturbing experience.”
19. The offences in question were particularly heinous as they were both committed against females.
20. It would appear from the sentencing remarks that the Applicant had been in a relationship with both the females concerned. They had attempted to end the respective relationships and in particular, it is the ending of the relationship with Ms… that lead to the attempt to kill her.
21. Cummins J found that the victim had changed jobs so as to avoid the Applicant, had made a request at her new place of employment that the Applicant not be permitted to enter and even commenced sleeping away from home to avoid the Applicant.
22. On the day of the offence, the Applicant had repeatedly telephoned the victim at her place of employment and eventually when she told him to stop hassling her or she would get a restraining order against him, he replied:
“you want to be like that with me, if you want to play we’re gonna to play.”
Cummins J found that it was then or on that day the Applicant formed his murderous intent and that night, lay in wait for his victim.
23. In 1997, the Applicant was charged with unlawful assault. That charge was found proved but adjourned for two years without a conviction being recorded plus he was ordered to pay $500 to the Court fund.
24. Section 75 of the Sentencing Act 1975 (Vic) states:
“Release on adjournment without conviction
(1)A court, on being satisfied that a person is guilty of another offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.”
25. Little is known of the facts constituting that offence except that in sentencing on the assault and unlawful imprisonment charges, Anderson DCJ said:
“ I was informed the matter involved a dispute between a women and the accused’s girlfriend. The accused intervened in the dispute. He attended at the women’s place of work, told her to leave his girlfriend alone and pushed or shook her.”
26. The crimes committed by the Applicant are serious in terms of paragraph 10.1.1 of Direction 41 as they involve violence and, more particularly, are of serious concern in that they all involve violence against females.
27. More troubling is the Applicant’s attitude to the offences themselves.
28. In a document accompanying his application to the Administrative Appeals Tribunal, the Applicant said of the offences first in time that the victim “set him up”. This was a statement he repeated in a later statement dated 22 June 2009 (Exhibit A14), in his evidence to the Tribunal and even in his final submissions to the Tribunal he stated, “she set me up.”
29. I am also concerned that in his closing submissions the Applicant said of the attempted murder count that it was not pre-meditated or pre-planned but was “a domestic that went out of control.”
30. The Applicant also stated that he too was a victim in these events.
31. The above statements, which were repeated in the Applicant’s evidence, indicate to me that he has no real insight into his behaviour. He still sees himself as a victim and denies any guilt in the offences involving assault and unlawful imprisonment.
32. Given the refusal to acknowledge his behaviour, I have very real and serious doubts about the Applicant’s rehabilitation and find that it is a real risk that he will re-offend. Various character witnesses paint a picture of a man who was outwardly softly spoken and polite, but, all his offences were against women, two of whom who had been in an intimate relationship with him. The picture given in the sentencing remarks of both Judges is that that the Applicant is, in any relationship, controlling and manipulative with a tendency to resort to violence if frustrated.
33. The sentences imposed for the offences indicate their gravity. The Applicant forwarded a document to the Tribunal (Exhibit A4) which read:
“Michael LeonBoyer (crn ) stab (sic) his victim to death (girlfriend) more than 30 times kill her and found guilty by the jury and yet I didn’t kill anyone and he still got out aproxmately (sic) 2 years before me. (we both went in at the same time) Im sorry to say this but it also very important if you can look into this case as well.”
34. I can only state that Cummins J is an experienced and widely respected jurist and that the sentence of 14 years with a minimum of 11 was no doubt well within the tariff for the Applicant’s offence.
35. The Applicant’s plea of guilty to the attempted murder count occurred only at trial. In evidence to the Tribunal he claimed he only pleaded guilty because of the urging of his barrister. Asked about he offence he said:
“ It might have been me but I wasn’t responsible for my actions.”
36. Again I take this to be an example of the Applicant’s failure to fully confront the reality of his actions.
37. As stated, the Applicant only entered a plea of guilty at trial. In committal proceedings his then barrister cross-examined the victim regarding having had an abortion, which she denied. I am satisfied that his cross-examination was upon the Applicant’s instructions and not, as he suggested in these proceedings, something the barrister did without instructions.
38. That particular line of cross-examination was as a result of a psychiatric report obtained on behalf of the Applicant. In these proceedings, the Applicant denied telling the psychiatrists the belief attributed to him and maintained that the psychiatrist and his barrister had misunderstood what he had said.
39. The exculpatory material in the psychiatric report was comprehensively rejected by Cummins J. After considerable research regarding Polynesian cultures and beliefs, Cummins J said:
“ Having given the matter open and careful consideration, I conclude that your instructions about being haunted before you attacked your victim are false. They have been invented by you, just like you invented the story of your victim stabbing herself…”
It is not necessary for these reasons to state all of Cummins J findings, but he concluded by stating:
“ A false story; invented by you. Adding to the suffering of the victim. It is now conceded on your behalf that the victim had not had an abortion. Nor was it ever discussed.
The psychiatrists evidence, distinguished as he is, in relation to your mental state at and prior to the attack upon your victim is I regret to say of no assistance to me because it is based upon an erroneous factual substratum; and also an incomplete one, as was demonstrated in the cross-examination before me by Mr Robinson on behalf of the Director.”
40. Unfortunately I can come to no firm conclusion regarding the Applicant’s behaviour whilst in prison. His prison record is at page 79 of the so called “G” documents, but details are abbreviated without any key to the abbreviations.
41. Regulation 44 of the Corrections Regulations 1998 (Vic) sets out various prison offences. Sub-regulation 44(1) is assault or maliciously threaten any person, whereas sub-regulation 44(1)(o) is conduct to the prejudice of good order etcetera. On the face of it, the Applicant has some 12 prison offences but their seriousness is unknown and I simply note that it would appear that there has been some prison offences but place no weight on them.
42. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN. No 81, Davies J, sitting as President of this Tribunal, said at N133:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm” (authorities omitted)
43. As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198, that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low.
44. In the present Applicant’s case, I am satisfied that given his prior conduct, his failure to properly acknowledge his offences and their gravity and an apparent lack of insight into his behaviour, that there is a very real risk of his re-offending, possibly with serious consequences to any victims.
Was the Applicant a minor when they began living in Australia
45. The Applicant was aged 19 when he first arrived in Australia and immediately began working. This consideration does not assist him.
The length of time the Applicant has been ordinarily resident in Australia
46. The Applicant arrived in Australia in 1987. His first finding of an offence being proved was for an assault committed on a female in 1997. In 1997 he also committed against two separate females serious crimes. He has now been in prison since 3 November 1997, and is currently in immigration detention.
47. The Applicant has thus been effectively separated from the Australian community since November 1997. This consideration does not weight in the Applicant’s favour.
International Obligations
48. No international issues arise. Immigration records reveal that the Applicant has, since arriving in Australia, visited New Zealand or the Cook Islands on four occasions.
49. The Applicant has no children. There is no evidence of any nieces or nephews who would be affected by the Applicants removal from Australia.
Other Considerations :
Family Ties
50. The Applicant’s parents currently reside in the Cook Islands. He has four brothers in Sydney and a half-brother in Melbourne. Prior to his incarceration, his brothers were living in the Cook Islands. Since his incarceration, his contact with his brothers in Sydney has been through their parents although his half-brother in Melbourne has visited him in gaol.
51. There is no evidence cancellation of the Applicant’s visa would cause any disruption to the lives of the Applicant’s brothers or their respective families.
52. Evidence was that the Applicant lost contact with his cousins in Australia.
53. The Applicant is married but now has no contact with his wife who he married while he was in gaol. His evidence was the he told her to “move on”.
54. If released from custody the Applicant intends to reside with a Miss Cavelli. Apparently they shared an intimate relationship at one time and she has visited him in gaol. When asked what might come of the relationship with Miss Cavelli, the Applicant said he hoped that the relationship would work out.
55. Miss Cavelli said that if the Applicant was returned to New Zealand she could not accompany him as she had to care for her aged mother. She is not financially dependent upon the Applicant although, if released from custody, any income he brought in would be helpful.
56. Various persons gave references as to the Applicant’s character. I am not influenced by these references as they were given without a full knowledge of all of the Applicant’s offences and the facts and circumstances of them.
57. One of the referees, Mr Brichko, stated that the Applicant had told him that he had not committed the offence.
58. I find that the Applicant has no real job prospects if released from custody. In evidence he said a Mr Baker could give him a job however Mr Baker denied in his evidence any ability to offer the Applicant work. Other offers of employment seem to be no more than of the vague “contact us when you get out” variety.
59. The Applicant has several medical conditions for which medication has been prescribed. New Zealand is similar to Australia in the provision of healthcare facilities and in the provision of medications. Even if the Applicant made his home in the Cook Islands, there is no evidence that appropriate medical care would not be available.
60. The Applicant is currently aged 41 years and does not require any care services. Although he has few skills, he should be capable of attaining low skilled work in either New Zealand or the Cook Islands.
61. The Applicant has previously lived in New Zealand so would adjust. If he returned to the Cook Islands he would also no doubt be able to readily adjust to that society. His parents are there and in sentencing Cummins J noted that the Applicant came from “a distinguished family in the Cook Islands”.
62. The Applicant drew attention to good works in the form of crosses made by him and given to several churches. Given his other evidence as to being “set up”, I do not regard this activity as showing genuine remorse.
63. Similar comments apply to the Applicant’s evidence of doing penance by sleeping on the floor of his cell. This was done, he said, for two years because he was “begging to save” his victim. This does not ring true as he knew by then that his victim had not died and the charge was attempted murder. It also seems inconsistent with his continuing in a plea of not guilty for some two years and up until trial.
64. I am also satisfied that the Applicant does not suffer from any mental illness.
65. Finally, I do take into account general deterrence. As was said by Davies J in Re Stone supra at N133:
“ The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature.”
Davies J continued at N135:
“…so far as possible, the persons who are accepted as full members of the Australian community are persons who are stable and honest, so that the risk of further harm to Australia is reduced should the offender recidivate and so that other immigrants are restrained in their conduct in Australia by the knowledge that they also may be deported if they offend against Australia’s law.”
66. The deportation of the Applicant will send a salutary lesson to the Polynesian community on Melbourne and in Sydney via the Applicant’s brothers that violent offenders will not be tolerated to remain in Australia.
Conclusion
67. In this Applicant’s case, the non primary considerations in Direction 41 do not in any way subtract from the primary consideration, in particular, the protection of the Australian community.
68. The Applicant is a violent offender who has not come to terms with his conduct and indeed, in relation to one series of offences, is still maintaining, despite a jury’s verdict, that he was “set up”. I find that there is a very real risk of his re-offending.
69. The nett result is that the primary considerations outweigh all others and that for the safety of the Australian community, the decision under review must be affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: .......................[sgd]..................................................
M.Corcoran, AssociateDate/s of Hearing 6 & 7 August 2009
Date of Decision 14 August 2009
Solicitor for the Applicant Appeared in person
Solicitor for the Respondent Mr A Orford, Clayton Utz
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