Laupata and Minister for Immigration and Border Protection (Migration)
[2017] AATA 124
•2 February 2017
Laupata and Minister for Immigration and Border Protection (Migration) [2017] AATA 124 (2 February 2017)
Division
GENERAL DIVISION
File Number
2016/4378
Re
LAUPATA, Parshe Lewis Jacob Godki
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 2 February 2017 Place Melbourne
The Tribunal affirms the decision under review.
[sgd].......................................................................
Senior Member A Poljak
IMMIGRATION – visa cancellation – character grounds - substantial criminal record – cancellation decision not revoked – whether another reason cancellation should be revoked – decision affirmed
Legislation
Migration Act 1958 ss 499, 501, 501CA
Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Cases
Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136
REASONS FOR DECISION
Senior Member A Poljak
1 February 2017
INTRODUCTION
The applicant, Mr Laupata, is a citizen of New Zealand. The applicant visited Australia on many occasions prior to his last arrival in Australia on 10 April 2011, when he was granted a Class TY Subclass 444 Special Category (Temporary) Visa (visa).
On 13 June 2013, the applicant was convicted of five counts of armed robbery, for which he was sentenced to 4 terms of 30 months imprisonment and one term of two years imprisonment, and of two counts of enter building with intent to steal, for which he was sentenced to 18 months and 15 months imprisonment respectively.
On 23 December 2015, the Minister for Immigration and Border Protection (the Minister), cancelled the applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 1 August 2016, a delegate of the Minister, after consideration of representations made, decided not to revoke the original decision. This decision to not revoke the original decision is that which is under review in these proceedings (“the decision”).
Therefore the issue before the Tribunal in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).
Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
The applicant was sentenced to an effective total sentence of five years imprisonment for his offences for which he was convicted of on 13 June 2013. He has a substantial criminal record in accordance with section 501(7)(c) of the Act and therefore fails the character test. This is not in dispute between the parties.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of Mr Laupata’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia 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.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
The three primary consideration which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
(2) Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
The nature and seriousness of the applicant’s conduct are relevant considerations when assessing the risk to the Australian community. Paragraph 13.1.1(1)(a) of the Direction provides that offences involving violence are viewed seriously.
The applicant’s criminal history in Australia is extensive and is viewed very seriously. Between 22 November 2010 and 16 June 2014, the applicant has appeared before a Court on at least five occasions and has been convicted of over 40 criminal offences. The Court has imposed a sentence of imprisonment on the applicant on three separate occasions related to 19 criminal offences.
Having regard to the sentencing comments of Judge Stuart on 13 June 2013 and the applicant’s pattern of offending, I am satisfied that the threat of imprisonment has not deterred the applicant from continuing to criminally offend. Judge Stuart states in his remarks at paragraphs [20] and [21]:
Your prior criminal history report reveals that on 22 November 2010 you were dealt with by the Sunshine Children’s Court on four charges of robbery. The disposition was a lenient one for you. The matters were without conviction adjourned for a period of 12 months, upon you being released and entering into a good behaviour bond.
On 19 September 2011 you appeared in the Sunshine Magistrates’ Court charged with seven counts of burglary and related theft and going equipped to steal offences. You were ordered to be detained for a period of four months in a youth training Centre, being released, as I understand it, in early 2012. That detention seemed not to serve as any warning to you for it is in 2012 that you committed Charges 1 to 6 and on 8 January 2013, Charges 7 and 8. Thus, within a period of approximately 12 months since your release from youth detention, you committed all the offences upon which I must sentence you.
The four of the five armed robberies that the applicant was convicted and sentenced for on 13 June 2013, were committed within a month of each other. Judge Stuart described the premises targeted in the armed robberies as soft targets because they had no security other than in one case, a CCTV camera. The offences involved the use of weapons and the applicant made threats to kill whilst committing his armed robberies. The applicant committed some of these offences against vulnerable members of the community, notably, a girl aged 15 years old who he brandished a knife at and threatened to kill.
It is also significant to note that charges seven and eight (burglary and criminal damage) were committed while the applicant was on bail on unrelated matters.
Having regard to the nature and circumstances of the offences and the sentencing remarks of Judge Stuart on 13 June 2013, it is plain that the applicant’s pattern of offending has escalated.
On 20 June 2013, the applicant again appeared before the Sunshine Magistrates’ Court and was convicted of burglary (three charges), theft (two charges), without authority/excuse enter private place, intentionally destroy property, intentionally damage property, reckless conduct, endanger serious injury and use methamphetamine. For these convictions he was sentenced to an aggregate 15 months imprisonment, his license was cancelled and he was disqualified for 18 months and fined $800.
Further, on 16 June 2014, the applicant was convicted of wilfully damage property. He was sentenced to 7 days imprisonment and ordered to pay $1,600 in compensation. It appears from the evidence before me that the applicant committed this offence while serving the term of imprisonment imposed on him for his criminal offences for which he was convicted of on 13 June 2013.
The very serious nature of the applicant’s criminal offending, the escalation in his offending and the obvious lack of deterrence by imprisonment or threat of imprisonment weigh very heavily against the exercise of the discretion to revoke the cancellation of the applicant’s visa.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nature of the harm to the Australian community should the applicant engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be serious, and perhaps extremely serious. A repetition of the offences involving violence would certainly involve a degree of physical harm to the victims and could result in very serious harm and possibly death.
A repetition of the offence relating to robbery would cause feelings of insecurity in the communities in which offences were committed particularly so because the applicant’s pattern of offending has escalated. The applicant is not deterred by the threat of imprisonment. This is plain by the fact that since his release from youth detention in 2012, the applicant has committed a large number of very serious criminal offences, of which two charges were committed while on bail. This conduct does little to instil confidence that the applicant is of low risk to the Australian community.
Significantly, as already stated, a number of offences were committed on soft targets, involved threats of violence, the use of weapons and some of the offences were against vulnerable members of the community.
At hearing, the applicant told the Tribunal that at the time he committed the offences he was young, stupid and involved with the wrong type of people. He also blames his drug use at the time which included cannabis and methamphetamine.
I have given serious consideration to the applicant’s evidence that he does not intend to reoffend. I am, however, not satisfied that he is remorseful about his past offending and deterred from reoffending in the future. This is supported by his continual lack of reform in the past.
In the sentencing remarks of Judge Stuart on 13 June 2013, reference is made to a psychological report by Michael Bilyk dated 21 May 2013. It is stated that Mr Bilyk was of the opinion, amongst other things, that the applicant is deemed a low-moderate risk of reoffending, provided he did not further engage in substance abuse or negative peer associations which had contributed to the offending then under consideration.
I note that the applicant has completed the following courses:
(i)High-Intensity Violence Intervention Program (completed on 23 February 2015);
(ii)Exploring Change Program (completed on 15 September 2014);
(iii)Relapse Prevention Program (completed 26 March 2015); and
(iv)Understanding Emotions (completed on 16 January 2014).
These rehabilitation/treatment programs appear to have been completed by the applicant when imprisoned. I note that only one of these rehabilitation/treatment programs relates to drug use and drug dependency. The Relapse Prevention Program is a 12 hour psycho-educational program which aims to provide participants with information to reduce the risk of drug use whilst in prison and upon release. While this is a positive sign that the applicant is willing to address and undergo programs of support in regards to his drug use, any benefit that the applicant may have received from the program remains untested outside of the prison environment.
In Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136 the Tribunal stated at [45]:
…until a person is free of such obligation to the Court, their conduct cannot be truly tested. On the other hand compliance with a supervisory order should not be dismissed as irrelevant.
At hearing the applicant was represented and supported by his father, Mr Leota. Mr Leota passionately described his desire for the applicant to remain in Australia. He said the applicant was born into a loving caring family surrounded by the church, his relatives and close friends of the family. This was also evident by the support the applicant had from his family at hearing. Mr Leota in his evidence describes how the applicant looked after his grandmother alone when he was only 14 years old and that he had full trust and confidence in the applicant at that time. Mr Leota said that the applicant was capable of good things and does good in the community. It is obvious that the applicant’s family have high hopes for him in the future but I must assess the situation as it currently exists.
The applicant provided to the Tribunal a letter from senior pastors of the Amazing Church dated 23 November 2016, a letter from the applicant’s brother dated 2 December 2016, a letter from Mr Leota (undated) and a letter from the Justice programs coordinator of Bridgingworx dated 12 December 2016, all of which I have read and considered.
Having regard to all of the evidence before me and the applicant’s extensive record of criminally offending, I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community.
The risk to the Australian community weighs heavily against a decision that the applicant’s visa not be cancelled.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
There is no evidence that the applicant is the father, or has parental responsibility, of any minor children in Australia.
This primary consideration is not relevant to the applicant’s circumstances.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. Of the 6 years he has spent in Australia, he has committed over 40 criminal offences.
In making the Direction, the Minister has made it clear that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
The applicant last arrived in Australia in 2011, aged 17 years old, and very quickly commenced criminally offending. The crimes which he committed involved armed robberies, the use of weapons, threatening and causing harm to members of the Australian community and on one occasion involved a minor. Given the nature, and the seriousness of his criminal conduct, I am satisfied that the Australian community’s expectation would be that the applicant’s visa should remain cancelled.
This primary consideration strongly weighs against a decision to revoke the decision to cancel the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked include the strength, nature and duration of his ties to Australia, impact on victims, and the extent of impediments if the applicant were removed from Australia.
Other considerations such as international non-refoulement obligations and the impact on Australian business interests are not relevant considerations in these proceedings.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the person began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As already stated the applicant arrived in Australia on 10 April 2011 at the age of 17 years old and has resided continuously in Australia since that date. The applicant was convicted of his first criminal offences approximately seven months after his arrival in Australia in April 2011. In accordance with subparagraph 14.2(1)(a)(i) of the Direction, I place little weight on the time that the applicant has been a resident in Australia.
I have no evidence of the applicant’s positive contributions to the Australian community.
I do acknowledge that the applicant’s immediate family reside in Australia. I accept the applicant has strong family ties to Australia. While this favours the applicant, it is significantly outweighed by the relevant primary considerations.
Impact on victims
Paragraph 14.4 of the Direction provides:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no specific evidence before me to indicate the impact of a decision not to revoke the cancellation of the applicant’s visa on the victims of his criminal offences. I do, however, note the sentencing remarks of Judge Stuart, in which he said that the impact of the applicant’s criminal offenses for which he was convicted of on 13 June 2013. Judge Stuart observed that in at least some of the victim impact statements the effect on your victims of your activities, your threats, your violence and your determination to obtain cash was not but a passing matter for them and has had, for some at least, considerable adverse effects then and continuing for some to present date.
In light of these remarks, this consideration does not favour the applicant.
Extent of impediments if removed
I note that the applicant has concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand. However, the applicant is currently 23 years of age and only arrived in Australia at 17 years of age. He has spent most of his life in New Zealand.
There is no substantive language or cultural barrier to the applicant returning to New Zealand. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship.
CONCLUSION
For all the above reasons, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.
The decision under review is affirmed.
| I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak |
[sgd]…..................................................................
Associate
Dated 1 February 2017
| Date of hearing | 15 December 2016 |
| Applicant | In Person |
| Solicitors for the Respondent | Clayton Utz, Ms R Noronha |
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