Kumeroa and Minister for Home Affairs (Migration)

[2018] AATA 3744

Kumeroa and Minister for Home Affairs (Migration) [2018] AATA 3744 (10 September 2018)

Division:GENERAL DIVISION

File Number:  2018/3947

Re:Justin Kumeroa

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Rayment QC

Date:10 September 2018

Date of written reasons:        9 October 2018

Place:Sydney

The reviewable decision is affirmed.

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Deputy President Rayment QC

CATCHWORDS

MIGRATION – Special Category (Temporary) (Class TY) (Subclass 444) visa cancellation – applicant fails to pass the character test – consideration of the protection of the Australian community not in applicant’s favour – some risk present to the Australian community should the applicant commit further offences or engage in other serious conduct – best interests of applicant’s child served by revocation of applicant’s visa cancellation –  expectations of the Australian community is a deeming provision favouring the affirmation of the reviewable decision – no international non-refoulement obligations – minimal ties with Australia – impact on victims – impact of applicant’s depression – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

WRITTEN REASONS FOR EXTEMPORARY DECISION

Deputy President Rayment QC

9 October 2018

1. In this matter, Mr Justin Kumeroa applies to the Tribunal for review of a decision by a delegate of the Minister for Home Affairs refusing to revoke the cancellation of his visa which he obtained here on arrival in Australia in the year 2000. He is aged 41 at the present time, having arrived here at the age of 23. Prior to his arrival, Mr Kumeroa tells me that he had been employed by the New Zealand Army with the rank of Private for some five years. He arrived here with, it seems, one relative in Australia at that time and several others have arrived in Australia in the meantime. He still has a number of relatives in New Zealand with some of whom he has contact including an aunt who lives in his former hometown in New Zealand to which he would propose to return unless the cancellation of his visa is revoked.

2. There is no doubt that Mr Kumeroa fails to pass the character test referred to in the Migration Act and attached to these reasons in due course will be a copy of the National Police Certificate recording his convictions, the most recent of which on appeal to the District Court from a sentence passed in petty sessions was a sentence of imprisonment of 14 months commencing in July 2017 and which would have concluded on 3 September this year, but subject to a non-parole period of six months which expired on 3 January this year. He fails to pass the character test because a sentence of imprisonment of longer than 12 months was imposed upon him as a result of the proceedings last year. The fact that his non-parole period was for a lesser period does not detract from that fact.

3. I take it from the matters put before me that on 3 January this year, he was put into immigration detention, at first at Villawood which Mr Kumeroa said was for some period of three months, and later on Christmas Island until recently he was returned to Villawood to give evidence and conduct these proceedings. I am bound by statute to have regard to the terms of Direction No. 65 originally made by Mr Morrison, the present Prime Minister, when he was Minister for Immigration in December 2014. I will not set out the terms of Direction No. 65 which are published and which appear in the papers before me, the G-documents commencing at page 142, nor will I set out the general guidance appearing in clause 6.2 of that document or in detail the principles set out in paragraph 6.3. Those principles constitute guidance to decision-makers which will assist decision-makers in making decisions on a review such as this.

4. By principle 6.3(5), it is stated that Australians may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. Strictly speaking, Mr Kumeroa having arrived here at the age of 22 cannot be said to have lived here from a very young age but I do not take the principle to be expressed so strictly as to exclude his case. The particular considerations which the Direction requires me to take into account are set out in part C of the Direction and it will be appropriate for me to take those considerations one by one starting with those set out in clause 13.

   PROTECTION OF THE AUSTRALIAN COMMUNITY

5. Clause 13.1 refers to the consideration of protection of the Australian community and that consideration refers to the need to protect general members of our community from the possibility of misconduct resulting in their harm. Relevant in that regard are the details of Mr Kumeroa's convictions including his most recent conviction. Speaking of his most recent conviction, the papers before me include materials before the Local Court of New South Wales dated 26 June 2017 and they include the Magistrate's sentencing remarks at pages 65 and 66 of the documents placed before me by the Minister. She described the offence of which she convicted Mr Kumeroa, which involved a physical attack on a person, as being in the middle range of objective seriousness.

6. She remarked that the assault in question carried a maximum penalty of five years but a jurisdictional limit affected her hearing of the case, the jurisdictional limit being a two-year maximum sentence. She also took into account that Mr Kumeroa committed the offence in question while on a good behaviour bond imposed by another Magistrate earlier in 2017. She described the earlier conviction as one of a similar nature of assault occasioning actual bodily harm. She referred to his record and formed the opinion that no sentence other than a sentence of imprisonment was appropriate for an offence of the nature in question. She revoked the previous bond and noted that the sentence suspended in February 2017 would be reimposed with effect from the date of his incarceration in April 2017 but she imposed a sentence of 14 months with a non-parole period of eight months commencing on the same date from that sentence.

7. Mr Kumeroa appealed to the District Court and in November last year the non-parole period was reduced as I have previously set out. I have noticed from the transcript of the proceedings before the Magistrate, in which Mr Kumeroa gave no evidence of his own, that the person injured alleged that there was no chess piece of the kind that Mr Kumeroa accused him of removing. Mr Kumeroa told me that he was affected by methamphetamines at the time of the offence in question.

8. Returning to the provisions of clause 13 of the Ministerial Direction, an attack on a citizen in the street of the nature involved in the commission of the offence, especially under the influence of methamphetamine, indicates both the nature of the conduct in question and its seriousness. If the attack was relevantly unprovoked and the removal of a chess piece would not constitute any kind of recognisable provocation, then the risk of repetition of the offence, if drugs should be consumed again, in particular, cannot be disregarded. Indeed, this is required to be borne in mind consistently with the direction.

   RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT

9. Clause 13.1.2 refers to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. This consideration, in fact, gives rise to a matter that has troubled me while hearing the evidence in this case. It seems that Mr Kumeroa has been treated by a duly qualified psychiatrist over a seven-year period from 2010 to 2017, having seen that gentleman, on the evidence he gave me, fortnightly during that period. He has not been asked by either party to these proceedings to give a report to the Tribunal in the case of the applicant, the fact that he is unrepresented may make his absence explicable and I make no assumption that he has been properly advised in the matter by any legal practitioner or other person in a position to assist him.

10. The Minister's representative put to me that the information that he had seen the psychiatrist as a treating medical practitioner over such an extended period was not placed before the Minister, which may explain why no enquiries were made by the respondent of the doctor in question, Dr Nielsen. Mr Kumeroa also told me in the witness box that although he was taking drugs from time to time, although not, I think, continuously during the period of time he was treated by Dr Nielsen, the doctor did not prescribe any medication for him which might have helped him to cease to be addicted to those drugs. The drugs in question were marijuana and methamphetamine.

11. As will impliedly be evident from the police certificate set out as a schedule to these reasons, there was a period of some five years or more before the two offences which he committed in 2017 suggesting that he took some benefit from the medical assistance which he had during that period. I gathered from Mr Kumeroa's evidence that part of the background to the offences of 2017 was that he had some hope of possible reconciliation with his son at the time when he most recently saw his son in October 2016. His mother came to Australia from New Zealand for a birthday party at that time and Mr Kumeroa had first hoped that his former partner who has custody of his son might permit him to have greater access to the son.

12. Mr Kumeroa told me that he has actually not had personal contact with his son since that birthday party in October 2016. He most recently spoke to the son for some 45 minutes in May this year during the son's school holidays and his contact with the son has been by such means or by social media or by non-personal contact since October 2016.

13. If Mr Kumeroa returns to drugs, then others are at risk as his history shows. If he does not, then the risk is correspondingly less. Mr Kumeroa tells me that he has been drug-free during his incarceration from April last year and during his period of time in immigration detention since January this year. There is nothing to the contrary that has been put before me on behalf of the Minister and I am prepared to accept that evidence.

14. On the other hand, unfortunately so far as I can see in Mr Kumeroa's history, no drugs have been prescribed which might assist him to withstand the temptation of drug-taking again if circumstances drive him in that direction. So on the face of it, there is some risk of recidivism in relation to his behaviour.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

15. The direction goes on to refer as a mandatory consideration described as a primary consideration, the best interest of minor children in Australia affected by the decision in clause 13.2 and Mr Kumeroa's 13 year old son, about to 14, falls into that category. Mr Kumeroa expressed to me a natural affection for his son and that which has previously driven him to take drugs or to resume taking drugs appears to be the prospect of an absence of continued contact with his son.

16. His son is in the adolescent period and there is no reason to doubt that a father's influence would be beneficial for his son. On the other hand, it must be conceded that his day-to-day contact with his son has been spasmodic at best. As I have said, the last time this year he spoke to him was in May by special arrangement, as I understand it, with the child's maternal grandmother and the last time he actually was in his son's presence was very nearly two years prior to then. Since his relationship with the child's mother came asunder, he has at most had contact of about a day or not much more than a day spasmodically with the boy since the year 2007 or 2008 and it seems that the relationship with his former partner was breaking down for some time prior to 2008. Thus, he has not had the opportunity to play a great role in his son's period of growing up to date. In any event, the consideration of the best interests of Mr Kumeroa's son undoubtedly favours the revocation of the mandatory cancellation of his visa.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

17. Clause 13.3 of the direction refers to the expectations of the Australian community. A decision of December 2017, Mortimer J in the Federal Court commented in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at paragraph 76 holds that in substance, this consideration does not favour any applicant and is a kind of deeming provision not dependent on actual community considerations as discerned by the decision-maker including this Tribunal. Her Honour therefore, proceeded on the basis in that case, that in all cases, it would favour affirming the decision under review. That decision of Mortimer J has not, so far as I am aware, expressly been departed from in any subsequent decision of the Federal Court, although it may be said that in several more recent decisions her Honour's decision was not actually referred to her judicial colleagues.

18. I proceed on the basis that consistently with the judgment of Mortimer J, the consideration of expectations of the Australian community is a kind of deeming provision of the kind to which her Honour referred. Their Honours were not considering the terms of Direction No. 65 and my statement that I propose to follow Mortimer J's decision makes it inappropriate for me to give my own consideration to that which the Australian community would expect in the case of Mr Kumeroa.

    OTHER CONSIDERATIONS

19. Turning to the other considerations expressly referred to in Direction No. 65, there are no international non-refoulement obligations which affect him. The ties which Mr Kumeroa has to Australia relate particularly to his son, although he has some other relatives in Australia, including an aunt, one of whom he describes as a person to whom he is close. They are not residents of Sydney and one assumes that they also have not had detailed personal contact with Mr Kumeroa since at any rate his offending of 2017.

20. So far, as the impact on the victim of his most recent offence is concerned, I have read the statement of the person injured given to the Local Court and the detail of the past impact on that victim is apparent from the transcript. He says that his ear was bleeding and that although he had thought his leg was broken, there was only ligament damage which had been dealt with. Mr Kumeroa last saw the psychiatrist who was treating him prior to his most recent offending and has no current contact with him because of his incarceration and then his detention. I have not discerned in the evidence, any particular impediment if Mr Kumeroa were returned to his home county and one does not understand that New Zealand is other than a good place to live with good public services.

21. So the express provisions of Direction No. 65 on balance, favour the return of Mr Kumeroa to his home country. One provision of Direction No. 65 requires decision-makers to take into account any other relevant matter and I have given earnest consideration to the question whether before any decision is taken about Mr Kumeroa, a report should be secured from his treating psychiatrist. That would require, if it were thought to be necessary, the setting-aside of the reviewable decision and a direction to be given to the respondent to obtain such a report. With some serious misgivings I have decided not to take such a course.

22. Dr Nielsen must have been aware that his patient was taking drugs from time to time during the period of time when he was treating him and did not prescribe medication other than medication appropriate to the diagnosis which he gave of depression with psychotic episodes. Therefore, he is not presently in a position to give evidence about the likely response of Mr Kumeroa to such medication and evidence of the mere possibility of positive response would not tip the balance in my understanding of the evidence before me. I must say that I have considerable sympathy for the applicant's position and very doubtful whether proper medical treatment has been afforded to him either before his most recent offending or since then in the period of time when he has been incarcerated or in detention.

23. He told me that he has not taken drugs, although he is still taking prescribed medication for his depression. He did not give me an impression that he would not respond to appropriately-recommended treatment and I can only express the hope that in New Zealand, he will properly be treated and be able to rehabilitate himself through employment and abstention from drugs or excessive alcohol. The decision of this Tribunal is, however, that the decision under review be affirmed which has the consequence that Mr Kumeroa will be returned to New Zealand.

1.       I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

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Associate

Dated: 9 October 2018

Date of hearing:	10 September 2018
Applicant:	In person
Solicitors for the Respondent:	Mr T Galvin, Minter Ellison

ANNEXURE A

DISCLOSABLE COURT OUTCOMES

Court	Court Date	Offence	Court Result
Downing Centre District Court	7 Nov 2017	Assault occasioning actual bodily harm – t2	H64069056: appeal allowed in part: imprisonment: 14 months commencing 04/07/2017 concluding 03/09/2018 court case reference number 2017/00100785
Central Local Court	26 Jun 2017	Assault occasioning actual bodily harm – t2	H65749451: Imprisonment: 7 months commencing 04/04/2017 concluding 03/11/2017 non parole period with conditions: 3 months commencing 04/01/2017 concluding 03/07/2017 release subject to supv
		Assault occasioning actual bodily harm – t2	H64069056: imprisonment: 14 months commencing 04/07/2017 concluding 03/09/2018 non parole period with conditions: 8 months commencing 04/07/2017 concluding 03/03/2018 release subject to subv severity appeal lodged:
Central Local Court	14 Feb 2017	Assault occasioning actual bodily harm – t2	H65749451: imprisonment: 7 months commencing 14/02/2017 concluding 13/09/2017 suspended on enter bond s12: 7 months
Downing Centre District Court	19 Aug 2011	Deal with property suspected proceeds of crime	H39712463: bond s9: 2 years supv nsw prob service
Downing Centre District Court	19 Aug 2011	Supply a prohibited drug	H39712463: imprisonment: 6 months suspended on enter bond s12: 6 months supv nsw prob service
		Assault with ACT of indecency – t2	H39150432: imprisonment: 12 months suspended on enter bond s12: 12 months supv nsw prob service
		Fail to appear in accordance with Bail Granted undertaking (conviction – 62073985)	H39150432: bond s9: 2 years supv nsw prob service
		Enter inclosed land not presc premises w/o lawful excuse	H39150432: fine: $300 costs – court: $81
		Affray – t1	H42278546: imprisonment: 12 months suspended on enter bond s12: 12 months supv nsw prob service
Central Local Court	3 Feb 2009	Knowingly contravene prohibition/restriction in order	H30551827: (call up) imprisonment: 6 months suspended on enter bond s12: 6 months (lcrt 1259)
		Common assault – t2	H32110156: (call up) imprisonment: 6 months suspended on enter bond s12: 6 months (lcrt 1259)
		Stalk/intimidate intend fear of physical/mental harm – t2	H32110156: (call up) imprisonment: 6 months suspended on enter bond s12: 6 months (lcrt 1259)
		Contravene prohibition/restriction in order (domestic)	H32110156: (call up) imprisonment: 6 months suspended on enter bond s12: 6 months (lcrt 1259)
Kogarah Local Court	29 Apr 2008	Knowingly contravene prohibition/restriction in order	H30551827: (call up) community service order: 100 hours cumulative (eeco 4525)
		Common assault – t2	H32110156: community service order: 200 hours cumulative costs – court: $70
		Stalk/intimidate intend fear of physical/mental harm – t2	H32110156: community service order: 200 hours cumulative costs – court: $70
		Contravene prohibition/restriction in order (domestic)	H32110156: community service order: 100 hours costs – court: $70
Kogarah Local Court	21 Aug 2007	Knowingly contravene prohibition/restriction in order	H30551827: bond s9: 12 months comply strictly with current apprehended domestic violence orders. costs – court: $70
		Common assault – t2	H30551827: fine: $600 costs – court: $70