KOLOTAU FUNGANUKU and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 558

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2091

GENERAL ADMINISTRATIVE DIVISION		)
Re		KOLOTAU FUNGANUKU

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date26 July 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...................[signed]......................

Senior Member

MIGRATION – Spouse visa – cancellation – conviction for serious sex offences – character test – exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

26 July 2010   G.D. Friedman, Senior Member

1.      Kolotau Funganuku is a citizen of Tonga who has been in Australia permanently since 1997.  On 12 May 2010 a delegate of the respondent found that Mr Funganuku did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his Subclass 801 (Spouse) visa.

LEGISLATIVE BACKGROUND

2. Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:

(a)       the person has a substantial criminal record (as defined by subsection (7)); or

…

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

3. Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).

4. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction 41) that came into operation on 15 June 2009.  The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

5.      Paragraph 9 of Direction 41 requires decision-makers to take into account the primary considerations in every case.  The four primary considerations are set out in paragraph 10(1) of Direction 41:

(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, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

6.      Paragraph 11 of Direction 41 provides that Other considerations (not primary considerations) be taken into account.  These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education, and whether the person has been advised previously of the deportation or character provisions of the Act.  Paragraph 11 notes that Other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations.

ISSUES

7.      The issues before the Tribunal are:

·     Does Mr Funganuku pass the character test? If not:

·     Should the discretion to cancel the visa be exercised? This involves an assessment of the primary considerations and other considerations.

DOES MR FUNGANUKU PASS THE CHARACTER TEST?

8.      Mr Funganuku was born in Tonga in 1963.  He first arrived in Australia on 18 February 1997 on a visitor visa and has lived continuously in Australia since 18 April 1997.  On 4 June 2003 he was granted a Subclass 801 (Spouse) visa by the then Minister which enabled him to remain in Australia indefinitely.

9.      On 15 September 2005 in the County Court of Victoria he was convicted of a number of offences against his step-daughter and sentenced to imprisonment as follows:

·     Incest by step-parent (5 counts): four years on each count; and

·     Indecent act with a child under 16 years (2 counts): 18 months on each count.

The total effective sentence was seven years and two months, with a minimum term of four years and eight months before becoming eligible for parole.  He was released in May 2010 and was taken into immigration detention.

10.     Mr Funganuku had previously been convicted at Heidelberg Magistrates’ Court in November 1999 of Recklessly Cause Injury involving an offence committed against his wife, for which he received a sentence of one month’s imprisonment, wholly suspended.

11.     Mr Funganuku conceded, and the Tribunal finds, that he does not pass the character test.

THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT

12.     Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk to the community include:

(a)       the seriousness and nature of the conduct; and

(b)       the risk that the conduct may be repeated.

Seriousness and nature of the conduct

13.     Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence are especially abhorrent to the whole community, particularly against vulnerable persons including minors.  Paragraph 10.1.1(2)(b) refers to all offences perpetrated against a child (particularly sexually-based offences).

14.     Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors, including the sentence imposed for the offences including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports and any relevant factors the person provides as mitigating factors.

15.     On the question of the period between offences and the time since the most recent offences, the Tribunal takes into account that the first conviction occurred in 1999 and the sexual offences were committed during the period 2000 to 2004, before Mr Funganuku’s imprisonment in 2005.  The offences appear to have been committed at regular intervals since his arrival in 1997.

16.     In a written statement dated 5 July 2010 Mr Funganuku said that while in prison he recognised that he was being punished for his wrongdoing.  He told the Tribunal that he is remorseful for committing the offences, and feels that he has disappointed himself and his family.  He said that he believes he deserves a second chance to remain in Australia.  Under cross-examination he agreed that his conduct towards his step-daughter had been unacceptable, but maintained that there had been an attraction between them and she had tried to seduce him.  He said that he had not been able to control his actions at the time.

17.     In his sentencing remarks Judge Gullaci noted that Mr Funganuku’s counsel conceded that the conduct was serious; it involved a gross breach of trust as a step-father; the offending was planned; it took place over a four-year period, Mr Funganuku had no insight into the offending; he satisfied the criteria for paedophilia; the risk of re-offending would depend on the success of any treatment in prison; and an immediate prison sentence was necessary.  His Honour also stated that Mr Funganuku had not shown any genuine remorse and was sentenced as a serious sexual offender.

18.     Mr Funganuku’s criminal conduct can only be regarded as very serious, as it involves multiple episodes of sexual offences against a child (his step-daughter was aged nine years when the offences commenced) and resulted in a lengthy period of imprisonment.

Risk that the conduct may be repeated

19.     Paragraph 10.1(2) of Direction 41 requires the Tribunal when assessing the risk of harm to the community to consider the risk that the conduct may be repeated.  That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.

20.     Judge Gullaci assessed the risk of re-offending based on reports from two psychologists, both of whom confirmed that Mr Funganuku met the diagnostic criteria for paedophilia.  Both noted that Mr Funganuku had expressed the view that the sexual experience had been positive for the victim and that she had seduced him, drawing the conclusion that such a lack of empathy would contribute to an increased risk of recidivism.  One psychologist concluded that Mr Funganuku should be …prohibited from being in unsupervised access with girls under the age of 16 until he could be appropriately treated and assessed.  The other psychologist strongly recommended that Mr Funganuku participate in a specialist program for sex offenders, failing which Mr Funganuku would represent a moderate to high risk of re-offending.  The Judge concluded that Mr Funganuku posed a risk to young girls unless he was successfully treated, and assessed the risk of re-offending as low to moderate if appropriate treatment was undertaken.

21.     On the question of the possibility of re-offending, Mr Funganuku told the Tribunal that in prison he was assessed at being in the low-risk category of re-offending, so that there was no necessity for him to complete a sex offender program, although he has competed a range of self-improvement and other courses that will equip him to re-integrate into the community.  He described his record of behaviour in prison as clean and said that there were no positive drug tests and only a few minor incidents.  He described himself as a model prisoner who had respect from all staff and other prisoners.  Mr Funganuku said that he attended church services in prison and now embraces the principles of Christianity and can be a better person as a result of his experiences.

22.     Under cross-examination Mr Funganuku agreed that he was assessed for the sex offender program using Static-99, a brief actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males by identifying historical factors such as age, previous convictions for sexual and other criminal offences, and marital history.

23.     In its publication: High-Risk Offenders: Post-Sentence Supervision and Detention Final Report the Sentencing Advisory Council of Victoria noted that risk assessment regarding recidivism is notoriously difficult.

24.     In a letter of support Fr R. Litjens, Anglican prison chaplain, described Mr Funganuku as loyal, devotional and appreciative and said that he has been forgiven by the victim.  The chaplain stated that he believes that consideration should be given to allowing Mr Funganuku to remain in Australia based on Mr Funganuku’s honesty, remorse, willingness to accept responsibility for his actions and his desire to contribute to the future wellbeing of his Australian-born son and family.

25.     Other letters of support were received from Rev Fr B. Davey, Catholic prison chaplain, who said that Mr Funganuku has used his time in prison to rehabilitate himself and that Mr Funganuku will be an asset to the Australian community; and from Rev T. Holani, Uniting Church minister, who stated that Mr Funganuku has shown remorse and has learnt from the past.  Mr P. Olney, Christian minister with BMC Ministries Inc., stated that he has known Mr Funganuku for more than two years and has found him to be courteous at all times and remorseful for his past actions, and has displayed some excellent personal qualities.  Mr Olney said that he has met Mr Funganuku’s former wife and the victim, and that both forgive him for his crimes.  He emphasised that Mr Funganuku has shown a desire to re-establish contact with his son in Australia, but that the child’s mother had not been co-operative.  Mr Olney said that his organisation is willing to support Mr Funganuku on his release from prison.

26.     Ms D. Gillespie, who met Mr Funganuku while he was in prison, stated in a letter dated 15 June 2010 that she has known Mr Funganuku for some time and described him as a …loving, caring, very supportive family man who is a …hard worker, very honest… and who treats everyone with respect and love.  She said that he …will do anything for his family and friends and his son and mother.  Mr J. Simpson, of Prison Fellowships, also provided a statement in support, and said that he has known Mr Funganuku since 2006 through Ararat Prison.  Mr Simpson described him as …a clean and careful person who was regarded highly by prison staff and who had a good work ethic and a willingness to improve his situation.  Mr Simpson also stated that Mr Funganuku has been concerned about his family and access to his son.

27.     In considering the likelihood of recidivism the Tribunal takes into account that the offences are extremely serious and were committed at regular intervals over several years.  The offences were committed shortly after Mr Funganuku’s arrival in Australia, and not long after receiving a suspended sentence for assaulting his wife; and were planned.  Through no fault of his own, Mr Funganuku has not undertaken a sexual offender program as recommended by the psychologists, and he shows little insight into his own offending.  His evidence that he still believes that his step-daughter seduced him even though she was aged nine years when the offences began, is of some concern.

28.     Although Mr Funganuku completed a number of self-help and educational courses in prison and he appears to have embraced Christianity and its teachings about developing life skills and a positive attitude, he has little family support and no stable accommodation or employment.  His written statement contains an acknowledgment of punishment for wrongdoing, but no mention of empathy for the victim or his son as a witness to some of the offences.  He seems to show little consideration for the consequences for the victim or her family.

29.     In view of the brief risk assessment carried out by Corrections Victoria and in the absence of any effective treatment or rehabilitation program as recommended by the psychologists and anticipated by the sentencing Judge, together with a lack of empathy and insight into his offending, the Tribunal finds that the risk that Mr Funganuku will re-offend, particularly against young girls, is moderate.

SECOND PRIMARY CONSIDERATION: WHETHER MR FUNGANUKU WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

30.     Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent formative years in Australia, but less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

31.     Mr Funganuku was aged 33 years when he began living permanently in Australia, so this primary consideration is not relevant to the application.

THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR FUNGANUKU WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY

32.     Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.

33.     Mr Funganuku has lived permanently in Australia since April 1997 and his first offences were committed in November 1999, which is a relatively short period prior to engaging in criminal conduct.

FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS

34.     The Convention of the Rights of the Child provides that, in all actions involving children, the best interest of a child is a primary consideration.  Mr Funganuku has a son born in 2000 who is an Australian citizen and lives with his mother.  Paragraph 10.4.1(4) of Direction 41 recognises that, under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents, but that a number of relevant factors must be considered.

35.     Mr Funganuku agreed that his son was present in the family home when some of the offences were committed and was a witness but was not a victim.  When Mr Funganuku was charged, child protection authorities required the son and the victim to live at an alternate address for their safety.  The victim’s mother took out an intervention order against him.  Mr Funganuku told the Tribunal that he had limited telephone contact with his son when he began his imprisonment, but that the child’s mother terminated the contact when she said that the child began to have nightmares, although Mr Funganuku disputed that he was the cause of the problem.

36.     Mr Funganuku conceded that he has had no direct contact with his son since 2005, although he has sent cards on birthdays and other special occasions.  He said that consent orders were made in the Federal Magistrates’ Court on 27 January 2009 that his former wife have sole parental responsibility for the child and that his contact with the child be reserved, but he has since considered seeking contact through the Family Court, as he wishes to re-establish contact with his son, and said that this would not be possible if he is removed from Australia.

37.     In a written statement dated 8 July 2010 Mr Funganuku’s former wife said that she met Mr Funganuku in 1998 and they began living together in 1999.  She described episodes of drunkenness and violence towards her, leading to his conviction for assault in 1999.  She said that the violence continued after she became pregnant and gave birth to their son in 2000.  She also stated that she separated from Mr Funganuku in 2004 immediately after she became aware of his offending against her daughter, and confirmed that there has been no contact between Mr Funganuku and their son for five years.  She stated that she and her children are part of an extremely close family that involves her brother and brothers-in-law, who act as male role models for her son, and extended family, and that her son’s life is better off without Mr Funganuku because he broke the trust of being a husband, parent and step-parent.

38.     In oral evidence the former wife stated that her son does not speak about his father and has settled well at home, with the assistance of counselling.  She acknowledged that she has forgiven Mr Funganuku for the purposes of moving on with her life, but wants nothing more to do with him.  Her daughter has not forgiven him.  She explained that she terminated telephone contact with Mr Funganuku when he became abusive towards her, although she emphasised that if her son wishes to renew contact with Mr Funganuku when he is an adult and is able to make an informed decision she would respect his wishes.

39.     The Tribunal accepts that Mr Funganuku wishes to renew contact with his son, with whom he has had no contact for five years, and that removal from Australia would have an adverse impact on his efforts to re-establish meaningful contact.  However the Tribunal accepts the evidence from Mr Funganuku’s former wife that he has destroyed all trust between himself and her and her daughter.  The Tribunal does not accept that she and her daughter have forgiven Mr Funganuku to the extent that they are prepared to resume contact, and there is no evidence to suggest that Mr Funganuku has addressed the impact of the son witnessing some of the offences.  The Tribunal accepts the former wife’s evidence that she and her daughter, together with the son, are part of a loving family that includes positive male role models, and that the stability of the family would be severely disrupted if Mr Funganuku seeks to remain in Australia to renew contact with the son at this time.  Such disruption may have more of an adverse impact on the child than the continued absence of contact with Mr Funganuku, particularly as there has been no contact for more than half the child’s life.  For these reasons the Tribunal concludes that the child’s best interests would not be served by Mr Funganuku remaining in Australia.

40.     The International Convention on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must be considered if relevant.  In a Personal Details form completed by Mr Funganuku on 3 December 2008 he stated that he had concerns if he was to return to Tonga in that he feared retribution from the father of the victim, and that the police in Tonga would not protect him from harm.

41.     Information available to the Tribunal about human rights in Tonga and the rule of law does not support Mr Funganuku’s claims, and there is no persuasive evidence to suggest that he would at risk of serious harm.

OTHER (NOT PRIMARY) CONSIDERATIONS

Family ties, the nature and extent of any relationships

42.     Mr Funganuku told the Tribunal that his father and one brother are deceased.  His mother and two brothers live in New Zealand, and a sister lives in the USA.  He said that his extended family lives in New Zealand and the USA, with a cousin living in Melbourne and two nieces or nephews in Queensland.

43.     Mr Funganuku confirmed that he has been estranged from his former wife for some time, although he said that the divorce in 2009 was granted against his wishes because he wanted to maintain the family unit.

Age

44.     Mr Funganuku is aged 46 years.  There is no evidence that he requires care or income support, so this consideration is not relevant to the Tribunal’s consideration.

Health

45.     There is no evidence before the Tribunal of any medical condition suffered by Mr Funganuku, so this consideration is not relevant to the Tribunal’s consideration.

Links to the country to which he would be removed

46.     Mr Funganuku told the Tribunal that he has no close relatives in Tonga and that after 13 years he considers Australia to be his home, although some extended family members remain there, and his mother makes several visits each year.  His former wife told the Tribunal that in 2003 she travelled to Tonga for Mr Funganuku’s father’s funeral and met a child who was introduced to her as Mr Funganuku’s son from a previous relationship.  She estimated that the child was two or three years older than her son, so he would now be aged about 13 years.  In evidence to the Tribunal Mr Funganuku denied that he had a son living in Tonga.

47.     Although the Tribunal makes no finding about whether he has a son living in Tonga, the Tribunal finds that Mr Funganuku has links to the country to which he would be removed because of extended family living there and visits to Tonga by his mother.

Hardship likely to be experienced by Mr Funganuku or his immediate family members lawfully resident in Australia

48.     Mr Funganuku told the Tribunal that he would suffer hardship if he is forced to return to Tonga.  He said that there are poor prospects for employment and he has no close family members to support him.  Re-establishing his life in that country after an absence of 13 years would be extremely difficult.  He explained that his efforts to restore contact with his son would not be practical if he resides in Tonga, and that this would cause hardship for his son.

49.     The Tribunal accepts that Mr Funganuku would suffer some hardship if he is removed from Australia after living here for a considerable period, and has not lived in Tonga since 1997, although he spent his formative years in that country and is familiar with the culture, the language and the people.  He has previously been employed there and his job prospects should be increased by his completion of a number of courses while serving his sentence.  The Tribunal acknowledges that efforts to restore contact with his son would be affected adversely, although the Tribunal takes into account that he has had no contact with his son for five years.

Level of education

50.     The Tribunal is satisfied that any lack of formal education has not impacted adversely on Mr Funganuku’s ability to present his claim in the application for review.  The Tribunal acknowledges that he completed several courses while in prison.  This consideration has no practical application to the Tribunal’s consideration.

Whether Mr Funganuku has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act

51.     On 7 July 2003 Mr Funganuku was informed by the Department of Immigration and Citizenship that the Minister had noted his conviction for assault and requested that Mr Funganuku be warned that any future criminal conduct might result in his migration status being re-considered on character grounds.  The Tribunal is satisfied that Mr Funganuku understood the warning and the consequences of further offending, and takes into account that his offending commenced in 2000 and continued until 2004, which was after receipt of the warning.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

52.     In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.  In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk. The first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation of Mr Funganuku’s visa in view of the Tribunal‘s conclusion about the seriousness of the offences, the harm caused, and the risk that he will re-offend.

53.     The second primary consideration concerning whether Mr Funganuku was a minor is not relevant to the Tribunal’s decision.  The third primary consideration weighs strongly in favour of cancellation because Mr Funganuku was resident in Australia for a relatively brief period prior to engaging in criminal activity.  The fourth primary consideration involving the best interests of a child weighs in favour of cancellation of the visa in view of the need for stability in the child’s life, and there are no relevant human rights concerns.

54.     Of the other (secondary) considerations the Tribunal takes into account the warning by immigration authorities in 2003 when Mr Funganuku was granted permanent residency, and that Mr Funganuku continued to re-offend after the warning, which weighs strongly in favour of cancellation.  There would be some hardship to if he is required to leave Australia, particularly after 13 years, and he has little family or other support in Tonga, although he has no close relatives (apart from his son) in Australia.  On balance the Tribunal finds that the other considerations weigh neither in favour of nor against cancellation.

55.     After considering all the circumstances of the primary considerations and then the other considerations the Tribunal concludes, for the reasons given, that the factors weighing in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.

DECISION

56.     The Tribunal affirms the decision under review.

I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

………………………………[signed]……………………………

Grace Horzitski    Associate

Date of hearing:  20 July 2010
Date of decision:  26 July 2010
Advocate for the applicant:          Mr P. Olney
Advocate for the respondent:       Mr D. Brown
Solicitor for the respondent:        Australian Government Solicitor