Lavea and Minister for Immigration and Citizenship
[2008] AATA 966
•30 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2008] AATA 966
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
File No 2008/3772
Re
Darcy Lua’ai LAVEA
Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal
Professor GD Walker, Deputy President
Date
30 October 2008
Place
Sydney
Decision
The decision under review is set aside.
..........[sgd]....................................
Professor GD Walker
Deputy PresidentCATCHWORDS
IMMIGRATION – visa cancellation – character test – conceded – discretion – whether tribunal should exercise discretion to cancel applicant’s visa – Direction 21 applied – three primary considerations – community protection and expectations considered – best interests of the children considered – other considerations – decision under review is set aside.
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RELEVANT ACT/S:
Migration Act 1958 (the Act): ss 499, 501
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Green v Minister for Immigration and Citizenship [2008] FCA 125
R v Henry (1999) 46 NSWLR 346
Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Aporo v Minister for Immigration and Citizenship [2008] FCA 102
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OTHER AUTHORITIES
Direction No 21
Migration Regulations 1994: Schedule 1, clause 1219; Schedule 2, clause 444
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REASONS FOR DECISION
30 October 2008 Professor GD Walker, Deputy President Basic Facts
1. This is an application by Darcy Lua’ai Lavea (the applicant) seeking review of a decision by the respondent's delegate to cancel the applicant's special category (class TY) visa. The applicant's visa was cancelled on the basis that he did not satisfy the character test set out in section 501 of the Migration Act 1958 (the Act).
2. The applicant is a citizen of New Zealand who arrived in Australia on 17 December 2001 when he was seventeen years old. He is now aged 24. On 20 August 2002 the applicant left Australia and did not return until 5 April 2004. Since then he has resided permanently in Australia, except for a brief visit to New Zealand between 28 January 2005 and 31 January 2005. Therefore, in total he has resided in Australia for just under five years.
3. The applicant was convicted of his first offence in Australia, custody of a knife in a public place, on 12 October 2005. Thereafter he was convicted of a number of minor offences including two charges of possession of a prohibited drug, one charge of Shoplifting and one charge of entering enclosed land without a lawful excuse.
4. On 22 March 2006 the applicant was convicted of a multiplicity of offences including destroying or damaging property, possession of implements to enter/drive a conveyance and stealing of a motor vehicle. Together these offences carried a combined maximum sentence of over 15 years’ imprisonment. The applicant was granted suspended sentences of two years, three months and six months for the offences, on the proviso that he obey reasonable directions for counselling, educational development and drug and alcohol rehabilitation.
5. While on recognisance for the above offences the applicant re-offended on a number of occasions, causing the suspended sentences to be called up. He received fines for a third conviction for custody of a knife in a public place, and for entering a restricted area of a station. The applicant also received prison sentences for the following offences:
(a)Two counts of larceny (convicted on 22 November 2006 and 18 December 2006); and
(b)Two counts of goods in personal custody suspected of being stolen (convicted on 6 February 2007 and 30 July 2007).
6. Subsequently, on 30 November 2007, the applicant was convicted of aggravated break and enter and commit serious indictable offence – in company, and was sentenced to two years and six months’ imprisonment.
7. Also, on 30 November 2007, the applicant was convicted of aggravated robbery and inflict actual bodily harm and was sentenced to three years and two months imprisonment. The applicant is still in prison and his earliest expected release date is on 29 June 2009.
8. On 2 January 2007, and whilst in custody, the applicant received 14 days’ penalty for failing to attend muster (G p48).
9. By letter dated 14 March 2008, the respondent sent the applicant a notice of intention to consider visa cancellation.
10. By handwritten letter dated 21 May 2008, the applicant responded to this notice, stating, that:
(a)When first arriving in Australia, he held a full-time job as a scaffolder, working as a colporteur in the Seventh Day Adventist Church in his free time.
(b)He resided in the Christian School, and after this closed, he became homeless (with no family in Australia) and subsequently lost his job.
(c)He became addicted to drugs and took part in crime to support himself and his drug habit.
(d)His family will be moving to Australia, and he is able to live with them in Sydney or his uncle in Perth after his release. He also has a brother in Sydney, a correctional officer, for support.
(e)He has employment opportunities with a labour hire company in Sydney and in mining in Perth.
(f)He has undertaken courses while in prison, including drug and alcohol rehabilitation, and now no longer has a drug habit.
11. The applicant also provided four letters of support:
(a)An undated letter from Denise Hewer (the applicant's mother), confirming that the family will be moving to Australia prior to the applicant's release and stating that the applicant's conduct was out of character;
(b)An undated letter from Renata Lavea (the applicant's sister);
(c)A letter dated 3 May 2008 from Carolyn Mafi (a family friend), vouching to support the applicant upon his release; and
(d)A letter dated 5 May 2008 from John Hewer (the applicant's uncle), offering to be the applicant's guardian in Perth, attaching an employment reference letter from John Hewer's employer (Action Mining Services).
12. Kathleen Stewart of the New South Wales Department of Corrective Services provided the respondent with a welfare report noting, inter alia, that the applicant:
(a)expresses remorse for his criminal activities;
(b)has sound pre and post-release plans;
(c)consistent employment while in custody; and,
(d)enrolled in intensive learning while in custody.
13. The welfare report recommends that the applicant be allowed to remain in Australia.
14. The delegate of the minister proceeded to cancel the applicant's visa on 31 July 2008, notifying the applicant by letter dated 4 August 2008. The delegate found that the applicant did not satisfy the character test as a result of his substantial criminal record, and exercised discretion in favour of cancelling the applicant's visa.
15. The applicant applied to the Administrative Appeals Tribunal (AAT) on 12 August 2008 to review the decision of the delegate to cancel his visa.
16. At the hearing, the applicant appeared in person while Ms Laura Weston, solicitor of DLA Phillips Fox appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant and in his support, his mother Denise Hewer, his mother’s friend Carolyne Mafi, and two of the applicant’s cousins Fofoga Lavea and Mine Niumata gave oral evidence in person while Mr W John Taylor, clinical forensic psychologist gave evidence by telephone.
Issue
17. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
18. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) (c) and (d), as follows:
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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); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or remain in Australia, there is a
significant risk that the person would:
(i) engage in criminal conduct in Australia…
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19. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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20. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
21. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Applicant’s evidence
22. At the hearing the applicant adopted his letter of 21 May 2008 (G pp100-102), which has been summarised above. He also adopted his affidavit sworn 25 September 2008 (Exhibit A3), a detailed document that begins by setting out his family composition and proceeds to outline his schooling up to Year 9 in New Zealand. He describes how at the age of 15 he was transferred from his school to one that catered for children with behavioural problems, from which he was expelled six months later because of his failure to attend regularly.
23. He then began work in a variety of occupations in New Zealand, and in Australia worked as a scaffolder, removalist, and dockhand. He enjoyed the scaffolding work because he was good at it and it paid quite well. Before going to jail he was committed to earning his scaffolding ticket and had completed half of the six-month course. Although he had experienced some periods of unemployment, they had been relatively short and recent. Since leaving school he had been employed 90 percent of the time and had never received any social security benefits either here or in New Zealand.
24. Until recently he had been somewhat estranged from his father who had been violent to him in his younger years, but relations were now much better and they were quite close. For much of the first three years he spent in Australia he did not have much to do with his family, primarily because when he went to prison he was ashamed to inform them of his conduct and circumstances.
25. He first came to Australia in December 2001 at the age of 17, living at first with his aunt and uncle in Brisbane and then with his brother Tim Glanville, a Department of Corrective Services officer, in Sydney. The arrangement worked successfully until 2002 when the applicant began using drugs regularly and mixing with a group of people who did not work and were also involved in drugs. His brother Tim became dissatisfied with his conduct and paid for him to return to New Zealand. He departed about 20 August 2002, returning to Australia on 5 April 2004.
26. In about mid-2004 he became acquainted with the Present Truth Movement, an organisation associated with the Seventh Day Adventist Church. Pastor Christopher Campos, who wrote a letter of support for the applicant, is one of the movement’s Sydney leaders. In 2004 he established a Christian residential school accommodating about 15 people including students such as the applicant, bible tutors and pastors.
27. The applicant had always been interested in religion and had studied various strands of Christianity. In return for free accommodation and bible lessons at the school, he volunteered door-to-door distributing Christian texts for a small donation. At that time he was also still employed as a removalist.
28. In late 2004, about two months after he moved into the school, it closed for financial reasons and all the residents had to leave on three days’ notice. His life after that became unstable and he turned to drugs and excessive drinking. By early 2005 he was homeless, unemployed, and seriously drug dependent.
29. He began smoking cannabis regularly at about 15 in New Zealand, and when he was about 17, began experiencing hallucinations. In early 2007, he had begun using heroin, amphetamines, ecstasy and “ice”, and began to hear voices.
30. About a month after his current custodial sentence began, in about April 2007, he was assessed by a psychiatrist (a Dr Lee) to whom he talked about his auditory hallucinations. He was diagnosed with a drug-induced psychosis or a schizophrenic illness and transferred to the Silverwater mental health unit, where he received treatment and medication. When he was transferred to the John Moroney Correctional Complex in April 2008, the anti-psychotic medication was terminated after a two-week trial. Since then he has felt normal and is free of psychotic symptoms. He no longer takes any medication.
31. While in jail he has attended the Intensive Learning Centre, completing subjects equivalent to Year 10 of high school and expects to complete the Year 10 certificate this year, and plans then to enrol for Years 11 and 12. He has also undertaken the Small Business Management course and a senior first aid certificate through TAFE.
32. He attends all counselling and groups that he is required to attend and has completed Breakout, a drug rehabilitation course. He is enrolled to commence the Drug and Alcohol Addiction Program (DAAP), commencing on 20 October 2008, together with an anger management course.
33. He attends Narcotics Anonymous meetings every week. In the random drug testing at the jail, he has never tested positive for drugs.
34. He has an offer of employment with Action Mining Services in Western Australia, where his uncle John Hewer works. Action Mining has in place a regular drug-testing regime for mineworkers to ensure that employees do not work while under the influence of drugs or alcohol.
35. All his problems with the law have occurred because of his addiction to drugs and alcohol. His only violent crime was committed when he was taking a combination of many different drugs and alcohol. He is no longer addicted and is more mature. His time in jail has made him understand that being involved with drugs and breaking the law is no way to live.
36. Pastor Campos and another pastor had visited him regularly while he was in custody and he intended to become an active church member again when released.
37. At the time he committed all his offences, he was not in contact with any family members because he was ashamed about his situation. Contact with his family would now keep him away from any trouble because he did not want to disappoint them or let them down again. He was now extremely close to his mother and has promised her that he would never go to jail again. That was very important to him.
38. In cross-examination, the applicant was asked about a number of his offences. He said that one of the convictions for possession of a knife in a public place related to a knife that he had in his possession as part of his scaffolding work.
39. He had been reluctant to plead guilty to the charge of being an accessory after the fact to an armed robbery carried out at the BP Normanhurst station on 2 September 2006 because he had not known that the principal offender was going to rob the station. They had driven to the location and the principal offender had entered the office on the understanding that he would be buying a packet of cigarettes. He emerged a little later having stolen a large quantity of cigarettes and $30 cash. The applicant had not been aware of the intention to steal but had benefited from it as the group had spent the cash proceeds on drink that evening.
40. His most recent conviction on 30 November 2007 was for aggravated robbery and inflicting actual bodily harm at Wahroonga. He disputed Judge Knox’s recital of the facts (G p55), saying that he had struck the victim, Mr Stokes, who then fell to the ground, but had only struck him once and then returned to the car.
41. His co-offenders had then robbed Mr Stokes but the applicant did not see which one had administered any additional blows. He himself had not done so and the passage in the sentencing remarks was not correct. He thought that perhaps one of the other members of Mr Stokes’s group had given the court a confused and inaccurate description of the events.
42. He then agreed that it was true that he was the only one of the group who had struck Mr Stokes and that his injuries were caused only by him. (In submissions, however, he explained that he had meant that he was the only one who struck Mr Stokes at the time he had punched him, but that he had not seen what the others did after he returned to the car and that he had misunderstood the question about the origin of the victim's injuries in the same way.)
43. The breaking, entering and stealing of the laptop computers from the school was not planned or prepared, but the offenders had agreed to break into a school, so it was planned to that extent.
44. He had first used marijuana at the age of eight or 10 when he took a glowing butt from his father’s ashtray, but had not regularly imbibed alcohol until he was 14 or 15, or used marijuana until he was 16. By the age of 18 he was using marijuana and drinking alcohol daily, later advancing to ecstasy, cocaine and heroin. He ceased using drugs for a period in late 2004 when he was at the residential church school.
45. The applicant agreed that he had been given lenient sentences to encourage him to rehabilitate himself but had re-offended several times. He had been aware of the possible consequences but had been careless about them, partly because of a breakup with his then girlfriend.
46. He did not claim to be completely cured of his addiction, but was attending Narcotics Anonymous meetings regularly and had refused all offers of drugs and alcohol during his current period of imprisonment. The experience of his current sentence had changed his outlook, otherwise he might have continued in the same direction.
Applicant’s supporting witnesses
47. The applicant’s mother, Mrs Denise Hewer, of Christchurch, New Zealand, in her statement of 27 September 2008 (Exhibit A4) stated that the applicant was in regular telephone contact with her and her husband for the few months after his return to Australia in April 2004, but by late 2004 ceased telephoning. Mrs Hewer tried to contact him by various means, eventually engaging Interpol in New Zealand to locate him.
48. She became aware of his involvement with the criminal law in about December 2006 when the applicant's brother Tim, in Sydney, telephoned to say that the applicant was in jail. That came as a huge shock to her, as when growing up the applicant had been a quiet child who kept to himself and was never in trouble. He was raised with moral standards and to respect other people. The trouble into which he had fallen was out of character.
49. She had come to know the mother of one of his friends, Mrs Carolyne Mafi, and speaks to her regularly by telephone. She visits the applicant when she can and has been a wonderful support to both of them.
50. As soon as she could, she travelled to Australia to visit the applicant, spending about a week in Australia in December 2007 and visiting him every day. During their visits, she and the applicant discussed his predicament in detail. He told her how difficult life had been when he was living on the streets and taking drugs. He often said how sorry he was for getting into trouble and causing her all this heartache. He vowed that he would never be in trouble with the law again and she believes he will keep that promise.
51. Mrs Hewer now speaks with the applicant every two weeks and feels certain that he understands how wrong his behaviour has been. Mrs Hewer and her husband plan to move to Australia before the applicant's expected release in 2009 to give him a place to live if he needs it and also to provide a stable environment.
52. At the hearing, Mrs Hewer said that she had not known at the time of signing her statement that he was using hard drugs. He had come to Australia to engage in bible study, but “went haywire” after the Christian school at which he was living closed down.
53. When the applicant had been living at home there had been many disputes between him and his father. Her husband had come from a violent family background and as a result had never learned proper parenting skills. He was very vocal and his verbal assaults on the applicant bordered on mental abuse. If the applicant did something wrong he would be smacked, but her husband tended to shout too much and administered some “hidings” on occasion. Nevertheless, he did the best he could and loves all the children. But his lack of parenting skills has meant that she has had to be the strength in the family.
54. Mrs Hewer knows in a general sense about the offences her son has committed, but has gained most of that information second-hand from the applicant’s brother.
55. At present she and her husband live in their own house in Christchurch. They intend to move to Australia, however, even if the applicant’s visa is cancelled. The applicant has an aunt in Christchurch, but he could not live with her. Her parents would, however, accommodate him and he would have some support from family members.
56. Mrs Carolyne Mafi is an enrolled nurse at Hornsby Hospital and is currently studying community and youth services at TAFE. She has a long-standing interest in welfare work and has been involved in an Islander home work group.
57. Mrs Mafi met the applicant about three years ago through the young people she knows in Hornsby. He was living with some Seventh Day Adventist friends at the time. She discovered that he had been incarcerated and was feeling suicidal. She visited him at Parklea Correctional Centre in 2006 and asked him if there was anything she could do for him. He asked her to contact his family as he had not been in touch with them for the last two years because he was feeling guilty and estranged from them because of his behaviour.
58. Mrs Mafi has since become close to his mother and keeps in touch with her, while also visiting the applicant every second or third week. She is committed to keeping an eye on his welfare and will assist him in any way possible. She believes he is a good person who unfortunately “fell through the cracks”, but thinks that in the right supportive environment he will become a worthwhile community member. He has completed many courses addressing his behaviour and his drug and alcohol problems. She hopes to attend his school certificate ceremony in the near future and have the opportunity of meeting his mother again.
59. She believes that the applicant has always been a good worker and that when released he would obtain employment through his good work ethic. She believes he is fundamentally a good person who is unlikely to re-offend (Exhibit A5, G p121).
60. In oral evidence Mrs Mafi stressed that her relationship with the applicant and his mother is based on friendship, not only on professional welfare concerns, and that it will continue.
61. The applicant’s cousin Ms Fofoga Lavea met the applicant for the first time in 2004 after another relative had located him in Cabramatta. He lived at her house and seemed a very quiet boy. After about a month he decided to leave, but did not say why or where he was going. She told him that if ever needed anything he could telephone her and could always live at her house.
62. She would be very happy to have the applicant live with her when he is released from custody. She works as a packer and team leader and would help him to obtain work with her employer.
63. Her father is a traditional Samoan man who neither smokes nor drinks. They both attend church every Saturday and would encourage the applicant to accompany them (Exhibit A6).
64. At the hearing, Ms Lavea repeated her offer of accommodation. She is aware of his drug and alcohol problems and believes she could help by encouraging him to abstain.
65. The applicant's cousin Mrs Mine Niumata at the hearing adopted her affidavit of 19 September 2008 (Exhibit A7). She has four children aged between 17 and 29 and is married to an Australian citizen. All her children are also citizens.
66. She first met the applicant in about 2004. She and her cousin met him at the station and took him to the home of her sister Fofoga (“Mina”), at Belmore.
67. Although she does not know him very well, she would be happy to have the applicant live with her and her family after his release. She believes her 17 year-old son would be good for the applicant and would give him someone to talk to.
68. She is very strict as a mother and if the applicant were to come to live with her he would have to abide by her rules. She does not tolerate drugs or unlawful behaviour. To the best of her ability she would ensure that he led a good law-abiding life.
69. Although she does not know the applicant very well, she considers it her responsibility as a family member to help him, in accordance with cultural duties.
70. At the hearing Mrs Niumata conceded that she was not aware of the details of his situation or convictions and had no professional experience in dealing with people with drug or alcohol problems. She had, however, been a secretary and part-time counsellor for an organisation helping those suffering from alcoholism.
71. The applicant tendered a statement from Christopher Campos, an ordained minister of the Present Truth Ministry, an independent ministry of the Seventh Day Adventist church (Exhibit A9).
72. He met the applicant in 2004 when he attended Mr Campos’s church bible classes. He was a student and joined the school he had established, which provided him with accommodation and bible lessons. In return the applicant performed volunteer door-to-door work distributing Christian texts for small donations.
73. Mr Campos was very surprised to learn that the applicant was in trouble because he had always been a very polite, sensitive young man with a real concern for humanity. He was also very interested in religion.
74. Mr Campos had visited the applicant several times at Silverwater. The applicant was very ashamed of his offending behaviour.
75. If the applicant were allowed to remain in Australia, Mr Campos would offer him all the assistance he could. He could provide peer counselling and spiritual guidance. He is confident that the applicant will not re-offend as he believes he is truly sorry for his past criminal behaviour.
Psychological and psychiatric evidence
76. Dr Bruce Westmore, forensic psychiatrist, examined the applicant at Silverwater on 18 July 2007 (Exhibit R1).
77. In discussing the assault on Mr Stokes on 23 March 2007, the applicant had said to Dr Westmore, “I heard voices telling me to hit him. As I hit him the other two robbed him. It wasn’t meant to be robbery either …. I don’t know why I hit him, I heard voices telling me to. I have been treated for schizophrenia in the mental health unit” (Exhibit R1, p2).
78. Dr Westmore pursued the subject of auditory hallucinations:
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I asked him more about the voices and he said they commenced when he was fifteen or sixteen, he thought the voices were male and internal. When asked what the voices said he stated, “You don’t want to be here, I’m not going to have salvation”. The voices talked directly to him, he was uncertain whether he had audible thoughts. He told me the television and radio also gave him messages which were based on Christianity. He said the voices stopped two months after he was placed on the antipsychotic medication, Zyprexa and the messages from the television and radio also resolved.
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79. It is clear from his report that Dr Westmore was of the opinion that the applicant was suffering from a psychotic illness, either a drug-induced psychosis or a primary process schizophrenic illness (Exhibit R1, pp5-7). He also thought that the applicant might have had a mental illness defence to the assault occasioning actual bodily harm against Mr Stokes: “If the victim was not laughing at Mr Lavea then he may have a mental illness defence to that particular charge”, he wrote (Exhibit R1, p7).
80. He noted that the applicant did not suffer from mental retardation but was on anti-psychotic medication for a mental illness that had resulted in his acute symptoms going into remission. He would need continuing psychiatric care and medication for at least another 12 to 18 months. While mentally ill and when intoxicated he could potentially represent a danger to the community (Exhibit R1, p7).
81. In his oral evidence Mr W John Taylor, clinical forensic psychologist, adopted his report of 21 September 2008 (Exhibit A8). The document canvasses the applicant’s background and notes his apparently successful treatment with anti-psychotic drugs. The applicant told him that he had been hearing voices at the time of the assault on Mr Stokes and said the victim had not done or said anything to provoke him. He believed that if he refrained from using drugs or abusing alcohol he would not commit any further criminal offences.
82. He expressed what appeared to be quite genuine regret and remorse for his offending behaviour and appeared to accept responsibility for his offences in the past.
83. Mr Taylor assessed the applicant as having a moderate risk of recidivism on the basis of actuarial analyses and clinical judgment. That depended, however, only on static or historical factors and did not include dynamic factors such as response to treatment or rehabilitation. The applicant reported being motivated for rehabilitation and had attended relevant programs in jail: “If Mr Lavea is able to maintain his motivation to resolve his substance abuse then his likelihood of recidivism would be substantially reduced and he would be considered to have much better prospects for rehabilitation” (Exhibit A8, p9).
84. The report concluded (Exhibit A8, p10):
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Based on information which has been available to me at the time of preparing this report I have reached the view that Mr Lavea has demonstrated significant change since his conviction for the offences which have given rise to the decision to cancel his visa. He now is actively participating in his rehabilitation and if he is able to continue to do this then his future will be much more positive in terms of him being able to live a more productive and stable lifestyle. His long-term rehabilitation is likely to be assisted by the support of his uncle who will be able to find employment for him in the mines in Western Australia and with whom he will be able to live.
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85. In cross-examination Mr Taylor conceded that some subjects try to misrepresent their history and overstate their prospects of rehabilitation, but noted that the system of evaluation he used provides a number of traps that a person could fall into if attempting to deceive. He had obtained no indication of any such attempts on the part of the applicant.
86. If the applicant refrained from using drugs, while one could not guarantee that he would not re-offend because there can never be a zero risk of recidivism and psychological conclusions can only be opinions and not facts, his chances would be better. Drugs were the motivation for his wrongdoing, even though the breakdown of a relationship was also involved. Drugs affect and impair people’s functioning in various ways.
87. The availability of a supporting environment would be a major factor in helping the applicant to maintain his motivation to avoid relapsing into drug use and criminal behaviour. There were positive signs in his present situation.
88. If he were to remain in Sydney, Mr Taylor considered that he would be a good candidate to join a program conducted by Mr Taylor that aims at restructuring offenders’ motivation in order to help them to maintain a positive motivation. Those who complete the program have a recidivism rate of only nine percent as against the usual 40 percent. The program would not, however, be available to the applicant if he were to move to Western Australia.
Application of the Law and Findings of Fact
89. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7) (Exhibit A10, para 12).
90. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
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91. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
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92. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
93. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
94. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. In this case, the applicant was convicted of aggravated robbery and inflicting actual bodily harm on 30 November 2007 and sentenced to three years and two months' imprisonment. On that occasion the applicant asked the sentencing judge to take into account a charge of being an accessory after the fact to the armed robbery carried out at the BP service station, Normanhurst, on 2 September 2006.
95. In relation to the latter offence, Knox J noted that the facts “indicate a very low level of criminality” (G p54). As to the robbery offence, however, his Honour noted that it “did involve a violent assault, and on a victim who suffered a number of injuries … and there was an eruption of mindless violence which is just reprehensible” (G p67).
96. His Honour also considered it relevant that the offence, together with the aggravated breaking and entering in company charge dealt with in conjunction with it, occurred while the offender was on conditional liberty. The second offence was committed within eight hours of the first and his Honour considered that the two offences were “interconnected and part of a crime spree whereby the offender, and those with whom he was mixing, had abandoned any kind of self-control” (G p68).
97. The applicant was convicted of his first offence 18 months after he began residing in Australia, and thereafter was convicted of over 17 offences (some relatively minor) in under two years.
98. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
99. The applicant's past drug usage cannot be treated as a mitigating factor in assessing the seriousness of his conduct (see R v Henry (1999) 46 NSWLR 346 per Spiegelman CJ). Indeed, the tribunal has taken the view that when the use of drugs leads to the commission of other crimes, the community has all the more need to be protected (Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at para 34).
100. On the other hand, it appears that during the relevant period the applicant may have been suffering from a psychotic mental illness, schizophrenia or a drug-induced psychosis. He says that he was assessed in about April 2007 by a psychiatrist named Dr Lee who diagnosed him with a psychotic disorder and transferred him to the Silverwater mental health unit, where he received treatment and medication. The treatment was apparently successful and after he was transferred to the John Moroney Correctional Complex the medication was terminated after a two-week trial. Since then he has felt normal and is free of psychotic symptoms. He no longer takes any medication.
101. The respondent submitted that there was no documentary evidence of a diagnosis of a psychotic disorder, but Dr Westmore was plainly of the view that he was so afflicted and in fact thought the applicant might have a mental illness defence to his most serious charge. Mr Taylor noted that the applicant had been on anti-psychotic medication for about six months and had not suffered any recurrence of his symptoms.
102. In view of those opinions, and of the undisputed fact that the applicant was treated over several months with anti-psychotic medication in the Silverwater mental health unit, it is reasonable to conclude that such a diagnosis was made at some stage, possibly by Dr Lee. That conclusion is not inconsistent with Knox J’s sentencing remarks (G p58), in which his Honour noted Dr Westmore’s observation that there was no definite diagnosis of the applicant but accepted that he may have been suffering from an acute psychotic illness that had now stabilised. The applicant was legally represented at the sentencing hearing, and as the applicant pleaded guilty and raised no mental illness defence, his Honour was not required to make a finding on whether such a defence might have been available.
103. While the applicant’s record must be regarded as very serious, there is a reasonable likelihood that at least part of it was significantly contributed to by the acute mental illness from which he was suffering and which now appears to be in remission.
104. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
105. The applicant has accumulated multiple criminal convictions of a serious nature over a short period. He has not availed himself of the opportunities offered to him by way of lenient treatment and has re-offended while on conditional liberty. The evidence from the psychiatrist and the psychologist identifies favourable signs in the applicant’s condition and attitudes, but they are only one factor to be considered in the tribunal’s evaluation of recidivism risk.
106. On the other hand, his remorse and contrition for his crimes appears to be genuine and his law-breaking conduct out of character with his prior observed behaviour and disposition, as well as with his upbringing.
107. He has a firm offer of employment with the mining company in Western Australia where his uncle John Hewer is employed. That company has an established practice of testing its employees for drugs and alcohol to ensure that they do not attempt to work while under their influence.
108. Given present economic uncertainties, it might not be possible to predict whether that offer, genuine though it concededly is, will still be available at the time of the applicant's planned release. Even so, he also has credible offers of employment in and around Sydney in the event that he should remain in New South Wales.
109. Importantly, he appears to have particularly strong family support structures on which to rely. He has offers of accommodation in stable environments in the homes of family members. His relationship with his mother is now very close and she appears to be a capable and determined woman who will do everything she can to prevent him from relapsing. He is still young enough for her to have some prospects of influencing him.
110. He has abstained from drugs during his present period of incarceration (unfortunately, drugs appear to be available in the prison through visits and other means), and while his resolution has not been put to the test in the wider community, he has undertaken relevant courses, is enrolled for two more and attends Narcotics Anonymous regularly. If he continues to live in Sydney he will be accepted into Mr Taylor’s program, which has had marked success in maintaining positive motivation among prior offenders.
111. He has a long-term commitment to his Christian faith, and an assurance of support from Pastor Campos and his church. While the tribunal could not favour an applicant on the ground of being a practising Christian or otherwise religiously observant, the evidence shows that in the past Pastor Campos’s church and influence have exerted a positive influence on the applicant’s behaviour.
112. Finally, the success of his treatment for a psychotic mental illness should also help him to avoid relapsing into criminal conduct. In my view, the applicant's overall risk of recidivism is low.
113. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
114. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
115. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
116. In my view visa cancellation in this case would have some general deterrent effect.
Expectations of the Australian Community
117. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
118. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many historical, economic and other reasons for that view: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
119. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
120. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
121. The community would be justified in having higher than usual expectation of New Zealand citizens, who are eligible as a matter of course for special visas unavailable to other non-citizens and which permit them to remain in Australian permanently: s 33 of the Act; Migration Regulations 1994, Schedule 1, clause 1219; Schedule 2, clause 444.
122. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
123. Normally the community would expect that the visa of a person who accumulated such a serious criminal record over a short period of residence should be cancelled. In this case, however, I think that view would be moderated in the minds of many people by the part apparently played by his psychotic mental disorder in his criminal activity and by the successful treatment of that condition, coupled with the success he has had to date in overcoming his drug problem and the strongly supportive environment into which he would be received if he were permitted to remain in Australia.
The Best Interests of the Child
124. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
125. The applicant has no children and did not claim that the interests of any child would be adversely affected if his visa were to be cancelled. The tribunal must nevertheless consider the interests of any minors who might have a close relationship with the applicant (Aporo v Minister for Immigration and Citizenship [2008] FCA 102).
126. Mrs Niumata has four children aged between 17 and 29, but they have never met the applicant. Mr Mafi has three children aged 16, 17 and 19. They have met the applicant and one daughter, Vi, became relatively friendly with him when she was aged about 16. There is no other evidence about Mrs Mafi’s children’s relationship with the applicant and no reason to conclude that it is close or that their best interests require that he remain in Australia.
Other considerations
127. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
128. The applicant has no business or similar interests in Australia that would be jeopardised by visa cancellation. He is unmarried and not in a de facto relationship with an Australian citizen or permanent resident.
129. Visa cancellation could have an impact on the applicant’s brother and their parents, who intend to move to Australia in any event. He has a number of aunts and uncles, as well as cousins, living in Australia. His parents, brother and some of his extended family, could suffer some emotional hardship if he were repatriated.
130. His grandparents live in New Zealand, as do seven of his siblings. He would have some family support if he were to be required to return there and has useful work skills. He would have access to Narcotics Anonymous and to welfare services similar to those available in Australia.
131. He has not previously been warned about the risk of visa cancellation. He has made significant progress towards rehabilitation and is genuinely contrite and regretful of his offences.
132. In particular, he has been successfully treated for the psychotic illness that played a significant part in his offending, especially in his most important offence. In Australia he would if released have an exceptionally strong and positive support network, comprising his parents, brother, extended family members, Mrs Mafi and Pastor Campos and his church. The applicant’s involvement with and attachment to that church is not a tactical or purely recent move. He is young enough to make a complete break with his anti-social past and has the resources to do so.
133. On behalf of the minister, Ms Weston presented a well-prepared case and advanced telling arguments. Nevertheless, for the reasons given I think the case is an unusual one and that there is little risk to the community in giving the applicant an opportunity to show that his recovery from mental illness and his rehabilitation are complete. In my view the evidence favours the exercise of the discretion in the applicant's favour.
134. No doubt the respondent will make it absolutely clear to the applicant that any further wrongdoing will result in renewed consideration of visa cancellation. Any such review is inherently less likely to result in a favourable outcome for him.
135. The decision under review is set aside.
I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.
Signed:
sgd
Renée Wallace, Associate
Date(s) of hearing
16 and 17 October 2008
Date of decision
30 October 2008
Solicitor for the Applicant
Self-represented
Solicitor for the Respondent
Ms L Weston, DLA Phillips Fox
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