LAFU Applicant And Minister for Immigration & Citizenship

[2010] AATA 234

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL            )

)          No 2009/0215

GENERAL ADMINISTRATIVE DIVISION		)
Re		Taumafai LAFU

Applicant

And Minister for Immigration & Citizenship

Respondent

DECISION

Tribunal The Hon. B Tamberlin QC, Deputy President

Date31 March 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

…………............[Sgd]................................

The Hon. B Tamberlin QC

Deputy President
CATCHWORDS

IMMIGRATION – Visa cancellation – character test – whether the Tribunal should exercise its discretion - New Zealand citizen- substantial criminal record- Class TY Subclass 444 Special Category (Temporary) visa- Ministerial Direction 41

LEGISLATION

Migration Act 1958 (Cth) ss499, 500, 501.

CASES

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

REASONS FOR DECISION

31 March 2010 The Hon. B Tamberlin QC, Deputy President           

1.        The Applicant, Taumafai Lafu, was born in December 1970. He is a New Zealand citizen and is not married.  He arrived in Australia on 19 May 2007 at the age of 37 and on entry was granted a Class TY Subclass 444 Special Category (Temporary) visa.

2.        Between 1987 and 2006 the Applicant committed a number of offences in New Zealand which he did not declare on his incoming passenger card upon arrival in Australia.

3.        On 9 October 2008 he was convicted in the Queensland District Court in Brisbane of assault occasioning grievous bodily harm, and sentenced to four years imprisonment, to be suspended for five years after serving a minimum of 16 months imprisonment.

4.        On 7 November 2007 the Minister for Immigration and Citizenship (‘the Minister’) sent Mr Lafu a ‘Notice of Intention to Consider Cancellation’ in relation to his visa, which the Applicant’s representative responded to.

5. On 24 December 2008 a delegate of the Minister cancelled Mr Lafu’s visa pursuant to section 501(2) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant applied to the Administrative Appeals Tribunal (‘AAT’) for review of the cancellation decision on 16 January 2009.

6.        In a decision dated 2 April 2009, Deputy President G D Walker affirmed the decision under review.

7.        An appeal was taken to the Federal Court and the decision was affirmed.  On appeal from that decision the Full Court of the Federal Court set aside the decision of the primary judge and remitted the matter back to the AAT for determination.  As a consequence of that remittal the matter has come before me for determination.

LEGISLATION:

8.The relevant legislation includes sections 499, 500 and 501 of the Act.

9. The AAT has jurisdiction to review the decision of the delegate by virtue of section 500(1)(b) of the Act. Section 501 relevantly provides:

“(2)  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)  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));”

10.       In the present case, it is common ground that the Applicant does not pass the character test due to his substantial criminal record, particularly considering that he has been sentenced by the Queensland District Court for a term of imprisonment of four years.

11. Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act as to the performance of those functions or powers in relation to matters, including cancellation of visas under section 501. On 3 June 2009, under section 499 of the Act, the Minister signed ‘Direction [No 41] – Visa refusal and cancellation under s 501’ (‘Direction 41’), which commenced on 15 June 2009. Direction 41 is binding on this Tribunal.

12. Paragraph 5 of Direction 41 sets out the objectives of the Act. It states that in order for the Australian Government to safeguard the community and effectively discharge its duties and responsibilities to the Australian people, it must seek to protect the community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. In order to carry out these objectives Direction 41 provides guidance to decision-makers with respect to performing functions that are binding on them. A decision-maker is required to consider the nature of any harm the person concerned may cause to the Australian community, and the risk of that harm occurring.

13.     Direction No.41, clause 10.1.2(1) speaks in terms of “any risk of re-offending”.  This can be taken as requiring a real risk of re-offending as opposed to one that is remote or fanciful.  Some guidance in applying this can be obtained in the decision of Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 205 where the Court said:

“The decisions in Chan and Boughey demonstrate that as a matter of usage the word ``real'’, when used as an adjective to describe a ``chance'’ or ``risk'’, means that the chance of the event happening or the risk becoming a reality is not remote even though the chance or risk is less than 50%. ``Remote'’ in this context means something that is extremely unlikely to occur. This is to use the word ``real'’ in the context of a quantitative assessment of the chance or risk. The decisions in Chan and Boughey mean no more than that in the context of the enactments there being considered, the chance of the event occurring, assessed in a quantitative sense, had to be substantial and not remote even though the chance may be less than 50%. However, neither the meaning of the word ``real'’ when used to describe a chance or risk, nor any requirement of the law, requires that a ``real risk'’ or a ``real chance'’ be assessed solely on a quantitative basis.

The word ``real'’ may be used to describe the qualitative nature of a risk or chance. In this sense it is used to describe something which is not far-fetched or fanciful.”

14. Direction 41 provides that decision-makers must follow a two-stage process in applying section 501. Firstly, the person must satisfy the decision-maker that the person passes the character test. Secondly, if the person does not satisfy this test the decision-maker has a broad discretion to refuse to grant or cancel a visa and must consider whether this is appropriate in the specific circumstances.

15.   The relevant issue in the present case is whether the Tribunal should exercise its broad discretion to cancel Mr Lafu’s visa.

16.   Part B of Direction 41 provides guidelines in exercising this discretion.  Paragraph 10 states that the decision-maker is required to take into account four ‘primary considerations’.  Paragraph 11 of Part B goes on to include seven ‘other considerations’ which are to be measured where relevant. 

17.   The primary considerations that must be taken into account are contained in paragraph 10(1) of Direction 41, and are as follows:

“(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

(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-refoulment obligations contained in the Convention and the Protocol Relating to the status of Refugees (the Refugee 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)..”

18.       The two primary considerations that are particularly relevant in the present circumstances are 10(1)(a) and (c).  The matters contained in paragraph 10(1)(b) and (d) are not applicable.

19.       In relation to the protection of the Australian community, regard must be had to the Government’s objectives referred to earlier, together with the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

20.       In the present case, the Applicant does not contend that his conduct should not be considered serious.  It involved grievous bodily harm, reckless injury and aggravated assault.  Clause 10.1.1 of Direction 41 provides that crimes involving violence or the threat of violence are of a special concern to the welfare and safety of the Australian population and that they are especially abhorrent to the whole community. 

21.       The lengthy sentence imposed in the Queensland District Court is indicative of the seriousness of the offender’s conduct against the community, and clause 10.1.1(3) of Direction 41 states that regard must be given to the extent of the persons criminal record including:

(i)the number and nature of offences;

(ii)the period between offences; and

(iii)the time elapsed since the most recent offence.

22.       Clause 10.1.1(4) of Direction 41 includes other factors which must be taken into account when considering the seriousness of the conduct and risk of repetition. These are:

(a)information and evidence from independent and authoritative sources in respect of the person, such as judicial comments in an individuals case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b)any relevant factors the person provides as a mitigating factors;

(c)whether the offence or conduct in another country is not classified as an offence in Australia;

(d)whether a lighter sentence would be incurred in Australia for a similar offence committed in another country;

(e)whether a person has been pardoned.

23.       In assessing the risk that the conduct may be repeated, the persons’ previous general conduct and total criminal history are to be considered highly relevant.  In particular, reference should be made to whether there is a recent history of convictions which might indicate an increased risk of re-offending, evidence of the extent of rehabilitation achieved, the prospects of further rehabilitation, and evidence of whether the person has breached judicial orders or other relevant undertakings or conditions imposed by the Courts.

CRIMINAL HISTORY

24.       The twenty one year criminal history of Mr Lafu is as follows:

New Zealand:
13/07/1987     Convicted of possession of cannabis, admonished, fined $100;

02/09/1987Convicted on three counts of possessing an offensive weapon (other), sentenced to “Admonished: Social Welfare Supervision (YC) – 02/09/1987 – 27 days, three months / Additional Information – ORDERED 10 HRS C/W.”;

02/09/1987Convicted of possessing a cannabis plant, admonished and discharged;

05/12/1988Convicted of possessing cannabis, fined $175;

05/12/1988Convicted as minor found in bar, fined $50;

30/10/1989Convicted of wilful damage, $50 reparation order;

06/11/1989Convicted on two counts of wilful damage, fined $100, $50 reparation order;

06/11/1989Convicted of possessing an offensive weapon (other), sentenced “To Come Up For Sentence If Called Upon – 09/11/1989 – 6 Months”;

02/05/1994Convicted of male assaults female (manually), sentenced to 3 months’ non-residential periodic detention;

02/02/2006Convicted of threatening to kill/do grievous bodily harm, sentenced to 9 months’ supervision (SA), special conditions.

Australia (Queensland District Court):

09/10/2008Convicted of assault occasioning grievous bodily harm, sentenced to 4 years' imprisonment, to be suspended for 5 years after serving a minimum of 16 months' imprisonment (the Australian conviction).

25.       The Australian conviction relates to a crime the Applicant committed on or about 4 August 2007, less than three months after he had arrived in Australia on 19 May 2007.  Mr Lafu was arrested and taken into custody on 3 September 2007, and subsequently convicted on 9 October 2008.  This time spent in custody was treated as time served.  Thus, his earliest release date was 2 January 2009.

26.       The Australian conviction involved Mr Lafu stomping on the head of a man who was lying on the ground after being rendered unconscious by Mr Lafu’s friend.  Mr Lafu initially denied that he had done anything to the victim but admitted to the offence once video evidence was produced showing him committing the crime.  The sentencing Judge stated:

“Obviously, the video shows your involvement, committing an unsolicited, unnecessary, gratuitous act of violence by stomping on the head of a person unconscious on the ground on his face as he lay there in the prone position”.

27.The victim was badly injured.  The sentencing judge stated:

“The complainant had to be incubated [sic].  He was transferred to a neuroscience unit and assessed.  He could not remember the events.  He was reviewed both in the Acquired Brain Injury Outreach Centre and the Maxillofacial Outpatient Clinic, with some numbness on the right side of his face, a type of neuralgic type pain… the fact of the matter is that permanent injuries have resulted, and you have shown some cooperation in the administration of justice – although this matter was set down for trial this week – by pleading at the late point and accepting that the complainant has suggested in his victim impact statement that he has a permanent metallic hint in his food and also odours when he smells [sic].  His sinus is a problem with his left nostril continuously producing mucus that has a projectile effect when he sneezes or coughs.  His jaw locks from time to time, causing momentary pain.  For the first few months after this event he was fearful of going out, and he became less sociable.  He says that the physical and mental problems have affected his career as a plasterer.”

28.       At the time of committing the Australian offence, Mr Lafu was heavily intoxicated, having had over 20 drinks, including beer and spirits.  He claimed before me that he was provoked by the victim who had made offensive racial remarks against him.

29.       I note that Mr Lafu’s conviction in 1994 involved an assault on a female involving manual violence, and that he was sentenced to three months non-residential periodic detention.  He gave evidence that this was as a consequence of severe provocation at a time when he was intoxicated.

30.       The last offence in New Zealand occurred in February 2006.  Again, Mr Lafu said that he was intoxicated when he made threats to kill and/or do grievous bodily harm with a weapon.  These threats were made by telephone and at the time he did not possess a weapon.  Nevertheless, it is a most serious offence to threaten violence of this degree and he was sentenced to nine months supervision.  Mr Lafu admits that he was under the influence of alcohol at the time the threat was made, but claims he was in extreme emotional distress as his de facto partner of 18 years had decided to leave him permanently.  He gave evidence that he was left with the mortgage and their two children.

31.       In evidence before the Tribunal, there are details of four incidents which have occurred in the period between May 2009 and January 2010, whilst Mr Lafu has been in Villawood Immigration Detention Centre (Villawood).  Two of these were fairly minor involving a prohibited article, namely a hand held radio, being found in the shared living area, and a pair of scissors found in Mr Lafu’s room.  These did not involve anger or violence.  A more serious incident occurred on 9 May 2009 when a heated exchange took place with another detainee.  Mr Lafu explained that during a visit by his partner and her four year old daughter, the other detainee approached and verbally abused Mr Lafu and his partner.  As a result, Mr Lafu’s visitors decided to leave early.  Visibly upset, Mr Lafu reacted in a verbally aggressive and threatening manner toward the other detainee.  I accept the explanation of the situation given by Mr Lafu, and as a result, I am of the view that this incident is not of great weight when taken alone.

32.       The fourth incident, which I consider to be more serious, occurred on 6 January 2010, when an altercation took place between Mr Lafu and another detainee.  A Villawood incident report records that a verbal exchange occurred between the two detainees, resulting in Mr Lafu punching the other detainee on the lip.  I accept Mr Lafu’s explanation that the detainee had been taunting him over a long period of time.  He gave evidence that, at the time he was in a depressed state because he was missing his family in New Zealand and was having problems with his girlfriend.  This does not excuse his conduct when assessing the danger to the community.

THE ISSUE:

33.       The issue before the Tribunal is whether the correct and preferable decision is not to cancel Mr Lafu’s visa having regard to the need for protection of the Australian community, the seriousness and nature of his conduct in the past, the risk that it may be repeated and the fact that the crimes of violence committed by him are ‘especially abhorrent’ to the whole community.

REASONING AND EVIDENCE:

34.       Having regard to his criminal record in New Zealand, I do not give significant weight to the offences prior to 1994 having regard to their relatively minor nature and the explanations given by Mr Lafu in relation to them.  Manual assault on a female in 1993 was, I accept, under provocation and the sentence of periodic detention was relatively light, moreover the offence took place over 16 years ago.  I consider the more recent conviction in January 2006 of threatening to kill or do grievous bodily harm to his ex partner, far more serious.  I give more weight to this incident and the sentence imposed.  However, it is significant that he did not possess a firearm and I am satisfied that he had no real intention to carry out the threat.  The relatively recent incident on 9 October 2008, shortly after his arrival in Australia, leading to a sentence of four years’ imprisonment is a particularly serious matter and must be given great weight.  The sentencing Judge’s remarks indicate severe initial injury and some ongoing injuries to the victim.  This incident, coupled with the 2006 incident in New Zealand and the two examples of anger whilst detained in Villawood, indicate that Mr Lafu is a person who can suddenly react with anger and resort to threatening behaviour or violence, particularly under the influence of alcohol.

35.       The Applicant tendered a report by Mr W John Taylor, a clinical forensic psychologist, dated 18 March 2009, which indicated that Mr Lafu had indications of instability in his personality adjustment and had developed some antisocial attitudes.  Further, having regard to Mr Lafu’s self-confessed alcohol problem, it was reported that he had an above average predisposition to engage in substance abuse.  Mr Lafu’s evidence before me was that most of his adult life he would drink to excess three or four times a week, and that he had a pattern of binge drinking that he continued until he was imprisoned in Australia.  He claims he does not intend to drink alcohol at all upon his release from prison as he has learnt a great deal about himself during his imprisonment.  However there is no evidence that he had ever attempted to seek any treatment for his alcohol addiction or of any intention to undertake any treatment or program on being released from detention.

36.       The actuarial analysis conducted by Mr Taylor indicated that Mr Lafu was assessed as having a ‘low to moderate’ risk of recidivism.  However, on another scale he was rated at the ‘lower end of the high-moderate range’ for risk of recidivism.  The conclusion of Mr Taylor was that the results of actuarial analyses indicated that he had a low to moderate risk of recidivism, but results of psychometric tests administered to him suggested his risk of re-offending may be higher.  However, it was concluded that if he were sufficiently motivated to change then his risk assessment would be lower.  It was Mr Taylor’s suggestion that if he were allowed to remain in Australia it would be strongly recommended that he undertake counselling to assist with alcohol relapse prevention and anger management. The assessment that he was at low to moderate risk of recidivism was on the basis that he could maintain his motivation not to engage in substance abuse and that he is able to resolve his ‘mild’ anger pathology.

37.       Mr Lafu has a close relationship with his sister, Ms Sala Lafu, who provided in a statement that she was prepared to help her brother in any way possible to establish himself in Australia.  She gave evidence that it would be hard for Mr Lafu to start life again in New Zealand as he has nothing left of his old life.  Her evidence is that she and her family have a good relationship with Mr Lafu.  She also stated that he was able to find a job quickly and that he is generous and has matured during his time in Villawood. 

38.       Oral evidence and a written statement were before the Tribunal from Mr Craig Lovett, the brother-in-law of Mr Lafu, and Sala Lafu’s husband.  He said that Mr Lafu was a family man, hard working, and a person who he trusted, having known him for many years.  He is prepared to provide accommodation in Cairns for Mr Lafu and support him in every way he and his family could assist.  He says the incident in Brisbane was completely out of character and he did not think there was any prospect that Mr Lafu would commit another crime in the future.  He testified as to the full-time employment and stability of Mr Lafu.  He referred to the break-down of the Applicant’s long-term relationship with his defacto partner, who he had helped and supported for nearly 20 years, together with his children.  Mr Lovett said that he understood the reasons for coming to Australia and the trauma Mr Lafu would have experienced by the break-up of his relationship in New Zealand.  He referred to Mr Lafu’s very strong ties with himself, his family, and with his sister Sala.  He strongly supports Mr Lafu’s efforts to stay in Australia and testifies that he is a good person.  He is convinced that what happened would not reoccur.  He noted that Mr Lafu had been offered employment by his previous employer at Q Tek Labour Hire in Brisbane and stated that the manager of that company had said that Mr Lafu was one of the best workers he had ever had, and that he may seek employment there upon release.

39.       There is no doubt that the past conduct of Mr Lafu in relation to the threat to kill or do grievous bodily harm to his defacto partner, and the offence committed in Australia amount to serious criminal conduct, involving violence and the threat of violence.  The case of the Australian conviction caused grievous bodily harm and occurred only a few years ago.  In relation to Mr Lafu’s risk of recidivism, the professional psychological report of Mr Taylor states that one scale assessed him as a moderate to high risk, and on another test there was a low to moderate risk.  In both instances however, there was an indication of real risk.  The report clarified that the assessment was qualified by the fact that the risk of recidivism would be relatively low if Mr Lafu were to modify his behaviour in relation to alcohol and anger management. 

40.       In my view, the evidence does not provide any satisfactory basis for forming a view that after such a long and intense history of very heavy drinking, Mr Lafu would be able to depart from the pattern of drinking to excess.  The drinking problem has been closely related to his outbursts of violence and aggression and nothing has been placed before the Tribunal to indicate any intention to undergo programs or give an adequate degree of assurance in this respect. 

41.       Although Mr Lafu has family support in Australia I am not persuaded that this is sufficient to significantly reduce the risk of angry or violent outbursts while under the influence of alcohol.  Recent conduct whilst in prison, although explicable, was provoked and took place without the influence of alcohol.  This behaviour demonstrates a persistent underlying tendency to engage in strong expressions of anger coupled with physical violence.  The 2006 incident, the Australian conviction and the conduct whilst imprisoned, indicate a substantial risk of re-offending.  Moreover, there was evidence that Mr Lafu made a false declaration as to his criminal record on entry into Australia, which tends to indicate that he either lied, or did not consider his past conduct as serious criminal conduct whilst in New Zealand.  His entry into Australia was an important matter to him and I do not accept that he simply overlooked or forgot his previous offences.

42.       I have taken into account that whilst imprisoned in Brisbane and detained in Villawood he has taken some substantial steps towards rehabilitation and retraining.  These steps are obviously of great significance, although, they were pursued in a limited environment.  I am satisfied that he is sincere in his regret for the incidents for which he has been convicted, particularly the Australian conviction, although at first he denied that it had occurred and only pleaded guilty when video evidence was produced.

43.       His stay in Australia was only a period of three months before the offence in Brisbane occurred, I do not consider that he can claim a significant attachment to Australia as a result of his stay in the community for such a short period.  I note that he was able to find employment and that he was a good worker.  He also has ties to some members of his family in Australia and they are prepared to support him.  Nevertheless, I do not think great weight can be given to these aspects, given the length of time that he was here. 

44.       In this case there is no need to consider the best interests of any children or other international obligations as they do not apply to the circumstances of Mr Lafu.

45.       In relation to the other considerations provided by Direction 41, I have taken into account his family ties and the fact that he appears to have formed an association with another person resident in Australia.

46.       In relation to New Zealand, I consider he has strong ties, having lived there most of his life, been married with two children, and having other family members living there.  I do not consider there would be any hardship likely to be experienced by Mr Lafu or to his immediate family members in Australia, nor do I consider that his educational level can be given any significant weight, although I note that he has made some efforts whilst imprisoned to improve himself.  I am not satisfied that this association should be given much weight.

47. Having considered and balanced the above considerations in light of Direction No.41 in particular, and having regard to the provisions of the Act, the correct and preferable decision is that the visa of Mr Lafu should be cancelled. The decision under review is AFFIRMED.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. B Tamberlin QC, Deputy President.

Signed:           ...............................................................
           B. Dhanasar, Associate.

Date of Hearing  16 February 2010
Date of Decision                   31 March 2010
Representative for the Applicant                   Ms Amy Douglas-Baker                      
Representative for the Respondent               Ms Alice Linacre