Larry Epati and Minister for Immigration and Citizenship
[2012] AATA 539
[2012] AATA 539
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2216
Re
Larry Epati
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Mr Dean Letcher QC, Senior MemberDate 17 August 2012 Place Sydney The decision under review is affirmed.
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Ms N Bell, Presiding Member
CATCHWORDS
IMMIGRATION – Visa cancellation – character grounds – substantial criminal record – applicant Samoan citizen – the meaning of ordinarily resident – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 501(2), (6), (7)
SECONDARY MATERIALS
Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
Ms N Bell, Senior Member
Mr Dean Letcher QC, Senior Member17 August 2012
Larry Epati is a citizen of Samoa, born on 16 March 1975. Mr Epati arrived in Australia in 1995 on a short stay tourist visa. He was 20 years old. In January 1996 he was granted a long stay visa. On the expiration of this visa Mr Epati stayed in Australia as an unlawful non-citizen. In 2003 he was detained in immigration detention for a period and now holds a spouse visa. He is now detained at Long Bay Correctional Centre following his conviction in August 2008 and pending his release from prison on 16 August 2012. The Minister has decided to cancel his visa on the grounds that Mr Epati did not satisfy the character test set out in section 501 of the Migration Act 1958.
Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that on 18 August 2008 Mr Epati was convicted of sexual intercourse without consent and was sentenced to six years’ imprisonment. It follows that he does not pass the character test.
The discretion of the Minister to cancel Mr Epati’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction 21 and came into effect on 15 June 2009. The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations in the Direction are:
10. The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(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).
These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.
PRIMARY CONSIDERATIONS
The primary consideration most relevant to Mr Epati’s circumstances, given his conviction for a violent crime, is the protection of the Australian community. The only one of Australia’s international obligations that arises is that under the International Convention on the Rights of the Child. Mr Epati is the father of four Australian citizen children.
Protection of the Australian Community
The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the seriousness and nature of the conduct and the risk that the conduct may be repeated.
The Direction, at paragraph 10.1.1(2)(a), lists rape and other sexually-based offences as serious. At 10.1.1(1), it notes that crimes involving violence or threats of violence are of special concern to the welfare and safety of the Australian community.
The remarks on sentencing of Judge English shed illuminate the background to the offence and its seriousness:
The jury clearly accepted that part of the complainant’s evidence that she performed fellatio upon the offender for fear of being hurt if she would not do so. That she was indeed a victim of domestic violence in the past but had managed to keep that part of the relationship silent as many victims do despite evidence on which could have demonstrated to the contrary, that she complied with his demands through fear.
The offence itself is an objectively serious one committed in a domestic relationship in the sanctity of the complainant’s own home, indeed her own bedroom, an offence which was committed against a background of violence and, in particular, threats of violence on this occasion. Consent was obtained as a result of fear, as I said. …
The offender is not, of course, being sentenced for past offences of violence towards the complainant. He is being sentenced on the facts as found by the jury to constitute the statutory alternative to count two.
It was, I find, a forceful incident which resulted in the complainant being unable to breath and vomiting from the force used to thrust his penis into her mouth, not as a consequence of her thrusting the offender’s buttocks towards her face causing her to vomit, as suggested by him.
Clearly there was, on the complainant’s evidence, a past history of violence and on the evidence of the offender, an act of violence towards her on this occasion and, as I have said, the offence was committed in circumstances amounting to a further factor of aggravation, namely, that the offence was committed in the complainant’s bedroom at home.
Judge English also commented on mitigating factors and on the view of the clinical forensic psychologist who interviewed Mr Epati:
There are a few mitigating factors. The offender maintains his innocence. He is neither remorseful nor contrite. His prior good character is of little assistance to him given the history of domestic violence.
His prospects for rehabilitation are lessened due to his lack of English and lack of insight into his offending behaviour and abuse of alcohol. The likelihood of him re-offending is intrinsically linked to his ability to rehabilitate himself.
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He has been interviewed by Catherine Wakely, a clinical forensic psychologist, and her report has been tendered. Psychometric testing was not possible due to the offender’s limited English and the limited English and the requirement for the use of an interpreter. There were aspects of the history taken which gave her cause for concern. She was of the opinion that the offender needed to improve his level of English, participate in domestic violence prevention programmes and participation in alcohol counselling.
The Probation and Parole Service Pre-Sentence Report, noted that Mr Epati had consumed up to twenty 250 ml bottles of beer on the night of the offence and that Mr Epati continued to deny the offence, and recommended that Mr Epati participate in programs to address his alcohol consumption and domestic violence issues. Mr Epati’s lack of English language and literacy skills was also noted and the report recommended he undertake an English literacy course as preparation for offence targeted programs.
In a further ‘Immigration Report’, dated 29 March 2012, the Probation and Parole Service reported that Mr Epati had attended only three Alcoholics Anonymous meetings in prison but had undergone no other drug and alcohol intervention. The Service also reported that Mr Epati had been assessed as suitable to be placed on the waiting list for a Moderate Sex Offender program. The Service reported that Mr Epati continued to insist that the sexual acts involved in his offence were consensual. He had expressed a wish to live with his cousin in Sydney after his release. He was considered to be reluctant to engage in programs.
Ms Suzanne Dumasia, of Forensic Psychology Services, in a psychological pre-sentence consultation, considered Mr Epati to have a low risk of re-offending on the basis of static historical factors (an indicator of general potential for reoffending, based on the past). However, dynamic risk factors (those relating to Mr Epati’s current psychological state and life circumstances) included Mr Epati’s limited acceptance of responsibility for the offence, his history of aggressive behaviour within his marriage, his use of alcohol and his ability to develop and maintain a functional relationship. An acute risk factor was use of alcohol to excess.
Mr Epati appeared to find it difficult to speak to the Tribunal, despite the assistance of an interpreter. His evidence was scant in spite of efforts by us to draw him out. He was clearly nervous and intimidated by the proceedings even though we attempted to minimise formality and to put him at his ease.
Mr Epati said he would usually have three bottles of beer after work and more if he was at a party. He maintained that, when released from prison, he will not drink at all because he has learned it does not help him decide what to do and he is concerned he would end up hurting someone he loved. He said he did a SMART program in prison of 12 one hour sessions on drugs and alcohol. He said he had also done some literacy training with the prison Chaplain.
Mr Epati maintained he had done nothing wrong. He maintained he had never been violent towards his wife. He said his wife was angry with him because she thought he was being unfaithful. He said she made everything up.
Mr Epati’s former employer, Mr Saunders, Managing Partner of Echodrive Tyres, spoke highly of Mr Epati’s value as an employee. He described him as hard working, keen to work, happy to “go the extra mile”, and cheerful.
We are mindful that Mr Epati was present in Australia after expiration of his visitor’s visa as an unlawful non-citizen from 1996 to 2003. Mr Epati said he knew at the time that his presence in Australia throughout that period was unlawful.
We consider that the seriousness of Mr Epati’s offence, the substantial risk of his reoffending, his having undergone no rehabilitation except for some literacy work and a SMART program, and his continued denial of the offence present an unacceptable risk to the Australian community. This factor weighs heavily in favour of cancellation.
Whether a Minor when began Living in Australia
Mr Epati was 20 years old when he commenced living in Australia. This consideration does not weigh in his favour.
Length of Time Resident in Australia Prior to Criminal Activity
The Minister urged on us a view that only Mr Epati’s time in Australia as a lawful resident should be taken into consideration. The Direction at paragraph 10.3 requires regard to be had to the period of time that “the person has been ordinarily resident in Australia”. The Minister has submitted that Mr Epati was not a person ordinarily resident during the periods 1 September 1995 to 1 January 1996 when he was in Australia on a tourist visa and 1 January 1996 to 1 December 2003 when he was here but without any valid visa. The Minister submitted that during those two periods he was not a “person” because paragraph 6(1) of the Direction states:
person, for the purposes of this Direction, means a non-citizen who is the applicant for, or the holder of, a visa.
The term “ordinarily resident” is not defined in the Act or Direction. During the eight years of the second period (and probably for part or the whole of the first period) Mr Epati was not an applicant for or holder of a visa. Therefore, the Minister submitted, he was not a “person” within the meaning of the Direction.
We are of the view that this is not the correct interpretation of the phrase. At the time of the reviewable decision, Mr Epati was the holder of a valid visa. At the time he was a “person” for the purposes of the Direction. We consider this is the relevant time for the purposes of the application of paragraph 10(1)(c) and 10.3. Mr Epati resided in Australia between 1 September 1995 and 1 December 2003 and during that time he worked, he formed a relationship with an Australian citizen and he fathered several children. We are of the opinion that the phrase "ordinarily resident" refers to the factual situation of his actual residence.
Paragraph 10.3 of the Direction commences:
Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community...
This supports our view that 10(1)(c) and 10.3 of the Direction direct attention to the extent of connection to the Australian community as a relevant aspect of the considerations.
In Mr Epati's case even though his length of residence was over 11 years, his grasp of written and spoken English was poor and his ties to the community did not extend greatly beyond his family and work. These matters affect the weight of this primary consideration.
We also note that Mr Epati said he knew, in 1996 when his visa expired and for the time after that, that he was present in Australia unlawfully. This bears negatively on his character.
The 11 years for which he was present in Australia before committing his offence weighs only very marginally in his favour.
International Obligations
The International instrument which relevantly obligates Australia in the circumstances of Mr Epati’s case is the International Convention on the Rights of the Child. This requires that if there is a child in Australia who is potentially affected by a visa cancellation decision then regard must be had to the best interests of that child. The Direction provides:
10.4.1International obligations
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors, which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
(5)In considering the best interests of the child, the following factors are to be considered:
(a)the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b)the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c)the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;
(d)the child’s age
(e)whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f)the likely effect that any separation from the person would have on the child;
(g)the existence of other persons who already fulfil a parental role in relation to the child;
(h)the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i)the time that the child has spent in Australia;
(j)any Court orders relating to parental access and care arrangements;
(k)any known wishes expressed by the child;
(l)whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m)the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, educational or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n)any language barriers for the child in the probably country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.
Mr Epati has four children from his marriage. They are aged 6, 7, 8 and 11 years. He has had no contact with them since the commission of his offence in 2006. His wife obtained an apprehended violence order against him, prohibiting his contact with both his wife and their children. We note that the apprehended violence order expired some time ago and thus he has not sought to have contact with the children or his wife since that time.
Mr Epati said of his relationship with his children prior to his offence that he shared in their care, changing nappies, taking the oldest to school, bathing them and playing with them. He said he intends, when he is released from prison, to go to the Family Court to obtain access to them on the weekends. He said he has not consulted a lawyer about this yet. Mr Epati said he paid child support to his wife while he was on bail after being required to do so by the Child Support Agency.
He said he gets news of the children on the telephone each month from his Aunt who lives in Mt Druitt and whom his wife visits occasionally with the children. No evidence of the wishes of the children or the current attitude of their mother was available.
Mr Epati has been out of contact with the oldest child of his marriage for more than half of that child’s life. He has been out of contact with the other three children of his marriage for most of their lives. Mr Epati’s return to Samoa would have limited immediate impact on the children, given that they have not had contact with him since 2006.
Given the nature of his offence, the action taken by his wife to obtain an apprehended violence order against him and the complete lack of contact from his wife since 2006, it is unlikely that she will be amenable to his having regular access to the children when he is released from prison. These matters will also likely be significant obstacles to his obtaining an order for such access from the Family Court.
Mr Epati also has a child from a previous relationship. She is 15 years old. He had little contact with her after her birth. Mr Epati said he saw his daughter for about one week after she was born, but then had a falling out with her mother and did not see her again until her fifth birthday. He said that from the time his daughter was about 10, he would have her over to stay for weekends and would visit her and her mother with his other children and his wife.
Mr Epati said his daughter and her mother, Ms Williams, visited him once when he was first imprisoned but it made him so sad he asked them not to return. He said he did not speak to his daughter on the telephone until he was transferred to Long Bay this year and since then he has spoken to his daughter and her mother every two weeks or so.
Ms Williams generally corroborated Mr Epati’s evidence, with some variations in times. She said he did not provide support for their daughter but he would occasionally give her money for her and on the rare occasions she asked for help he would give it if he could. She said she offered for Mr Epati to come and live with her and their daughter when he is released from prison. She said she did not know how long he might stay or whether they would resume their relationship. She said she would not relocate to Samoa if Mr Epati was forced to return there.
Mr Epati’s and Ms Williams' daughter said she misses her father and would be sad if he had to return to Samoa. She said that if he did return there she would speak to him on the telephone and would visit him there if possible.
Mr Epati’s contact with his 15 year old daughter has been irregular over her lifetime and largely non-existent for the majority of his imprisonment. He was sentenced to 6 years imprisonment, with 4 years having been served so far. He is eligible for parole soon but there is no evidence of whether he is likely to be granted parole in the near future. Mr Epati’s daughter may be as old as 17 when he is released from prison. There will be little of her minority remaining.
He has played a very limited role in her life. He has not provided regular financial support for her and, particularly in her primary school early years and for the last few years he has been administratively absent. His daughter has expressed a wish to remain in contact with him and she will be able to maintain that contact even if he returns to Samoa. Since imprisonment in 2008 he has had only telephone contact with this daughter and for only the last eight months of the four year period.
It is generally in the best interests of a child to be with the child’s parents, except where the child has been subject to abuse, negligence or trauma. There is no evidence of this here, but we note the findings of a history of domestic violence. Nevertheless, we find that it could be in the best interests of each of Mr Epati’s children if he were to remain in Australia. But we temper our finding with the conclusion that Mr Epati has been administratively absent from each of the children’s lives, that he would face significant obstacles in obtaining regular access to the four children of his marriage were he to remain in Australia after his release from prison and that his older daughter will have little left of her minority when he is released.
For these reasons, we find that this consideration weighs only moderately against cancellation.
OTHER CONSIDERATIONS
Family Ties and Relationships
Mr Epati has three aunties and one cousin living in Sydney. None of these people, except for his cousin, has visited him in prison. His cousin visited him twice while he was at Parklea jail. He has resumed telephone contact with Ms Williams and his daughter this year, on average every fortnight. Mr Epati said he used to have friends.
Mr Epati has not provided financial support for any of his children since his incarceration and did not provide any financial support on a regular basis for his oldest daughter at any time. They are not dependent on him financially.
If this consideration weighs against cancellation at all, it is only by a small degree.
Age
Mr Epati is 37 years old. This factor is neutral.
Health
Mr Epati suffers from hypertension, for which he takes medication. Otherwise his health is unremarkable. We note that he held down employment in which he did physical work for four years prior to his offence. There is no evidence to suggest that anti-hypertensive medication and other appropriate health care for the condition would not be available to him in Samoa.
This factor does not weigh against cancellation.
Links to Samoa
Mr Epati’s sisters and brother live in Samoa. His stepmother also lives there. Mr Epati was 20 years old when he left Samoa and Samoan is his preferred language.
Mr Epati said he had friends in Samoa but he has lost contact with them. Mr Epati said he would live with one of his sisters if he returned to Samoa.
These are considerable links. This factor does not weigh against cancellation.
Hardship
Mr Epati said he will have nothing to do in Samoa because there are no jobs there. He also said he will be very sad to be away from his children, particularly when he sees everyone else with their children around them. However, Mr Epati speaks Samoan and has immediate family there. He said he would live with his sister.
There is no evidence that Mr Epati’s wife would experience hardship if he were to return to Samoa – indeed all indications are to the contrary. There is no evidence that Ms Williams would experience hardship if he were to return to Samoa.
Given that it is in the best interests of children to be with their parents, some hardship may be experienced by Mr Epati’s children if he were to return to Samoa. Mr Epati’s oldest child told the Tribunal that she would miss her father if he had to return to Samoa.
This factor weighs moderately against cancellation.
Level of Education
Mr Epati left school at age 12 and has limited English verbal skills and cannot read or write in English. Samoan is his first and preferred language. He completed no vocational training courses in prison. It was apparent that the presentation of his case and his advocacy on his own behalf suffered because of his lack of education. This consideration weighs moderately against cancellation.
Formal Advice
Mr Epati received no formal advice by an officer of the Department of Immigration and Citizenship about the conduct that has brought him within the deportation provisions of the Act. This consideration weighs marginally against cancellation.
THE BALANCE OF CONSIDERATIONS
Of the primary considerations, the protection of the Australian community weighs heavily in favour of cancellation of Mr Epati’s visa, while two of the remainder weigh only moderately or marginally against cancellation.
Of the other considerations, family ties and relationships, hardship, his level of education, weigh only moderately or marginally against cancellation and do not cumulatively, even with other primary considerations, outweigh the concerns he presents to the protection of the Australian community.
On balance, we consider that the weight of considerations, particularly in relation to the primary consideration of protection of the community, is in favour of cancellation of Mr Epati’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell and Senior Member D Letcher QC. ......[Sgd]..................................................................
Associate
Dated 17 August 2012
Date of hearing 2 August 2012 Date final submissions received 8 August 2012 Applicant In person Solicitors for the Respondent Department of Immigration and Citizenship In-House Litigation Section
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Protection of the Australian Community
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Risk of Harm to the Community
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Sentencing Remarks
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Domestic Violence
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