Lemalu and Minister for Home Affairs (Migration)
[2019] AATA 1237
•11 June 2019
Lemalu and Minister for Home Affairs (Migration) [2019] AATA 1237 (11 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1711
Re:Matthew Lemalu
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member T Eteuati
Date:11 June 2019
Place:Brisbane
The decision under review is affirmed.
........................................................................
Member T Eteuati
Catchwords
MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – Applicant failed to pass the character test – whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – decision under review affirmed.
Legislation
Corrective Services Act 2006 (QLD)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member T Eteuati
11 June 2019
BACKGROUND
This is an application by Matthew Gregory Lemalu (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on
19 March 2019 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“TY 444 visa”).
The Applicant first arrived in Australia on 9 October 1999 with his family, aged seven years.[1] The Movement Details show the Applicant has departed for New Zealand and
[1] G Documents, G22, page 130, Movement Details, dated 9 January 2019.
re-entered Australia on the following occasions:
(a)Depart: 22 January 2004, Arrive: 6 February 2004;
(b)Depart: 30 December 2008, Arrive: 25 January 2009;
(c)Depart: 18 December 2009, Arrive: 9 January 2010;
(d)Depart: 16 December 2011, Arrive: 17 January 2012;
(e)Depart: 3 October 2014, Arrive: 7 May 2015; and
(f)Depart: 11 May 2015, Arrive: 30 June 2015.[2]
While a TY 444 visa is technically a temporary visa, a TY 444 visa allows its holder to remain indefinitely in Australia. When the holder of a TY 444 visa departs Australia, the visa ceases but, subject to a person continuing to meet the visa criteria, they are granted a new TY 444 visa when they re-enter Australia. Each time the Applicant re-entered the country he was granted a TY 444 visa.
[2] G Documents, G22, page 130, Movement Details, dated 9 January 2019.
The Applicant was last granted a TY 444 visa on his last arrival in Australia on 30 June 2015. It was this visa that was cancelled under section 501(3A) by the Minister’s delegate on 2 November 2017.[3]
[3] G Documents, G3, pages 7 – 57, Notice of visa cancellation under s501(3A) of the Migration Act 1958 and attachments.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than
12 months and was serving a full-time term of imprisonment. On 21 November 2017, the Applicant sought that the cancellation decision be revoked.[4] On 30 November 2018, the Minister provided adverse information to the Applicant for his response.[5] On 1 March 2019, the Minister provided the Applicant with a copy of Direction 79 for his comment.[6]
On 19 March 2019, the Minister refused to revoke the cancellation of the Applicant’s TY 444 visa.[7] On 28 March 2019, the Applicant applied to this Tribunal for review of that decision.
[4] G Documents, G20, pages 124, Letter requesting revocation dated 21 November 2017.
[5] G Documents, G6, pages 66 – 68, Further Information regarding possible revocation of visa cancellation, under s501CA of the Migration Act 1958, dated 30 November 2018.
[6] G Documents, G11, pages 79 – 82, Further Information relevant to decision under s 501CA of the Migration Act 1958 on whether to revoke the original decision to cancel your visa, 1 March 2019.
[7] G Documents, G12, pages 83 – 94, Notification of decision not to revoke cancellation decision made under s501(3A) of the Migration Act 1958, dated 19 March 2019.
The matter was heard on the 29 May 2019. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that, there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”.
I consider that this is a correct construction of s 501CA(4)(b).In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A12 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R16. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 35 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
The Applicant’s National Police Certificate records the Applicant as having the following disclosable court outcomes in Queensland:[8]
[8] G Documents, G13, pages 95 – 97, National Police Certificate, dated 2 July 2018.
Queensland
Court Date Offence Court Result 4 October 2017
Robbery armed/in company/wounded/used personal violence (on 15/09/2016)
(s 411(1)&(2) CC)Conviction recorded. Sentenced to 4 years imprisonment, suspended for 5 years after serving 14 months. Attempted robbery with actual violence whilst armed/in company/wounded/used personal violence (on 16/10/2015) (s 411(1)&(2)&535 CC) Conviction recorded. Sentenced to 3 years imprisonment, suspended for 5 years after serving 14 months. All terms of imprisonment to be served concurrently with time spent in pre-sentence custody deemed as time already served. 5 October 2016 Breach of bail granted condition (between 12/04/2016 and 5/05/2016) (s 29(1) BA)
Conviction recorded. Sentenced to 14 days imprisonment to be suspended for 12 months (cumulative) Failure to appear in accordance with undertaking (on 5/05/2016) (s 33(1) BA) Conviction recorded. Sentenced to 14 days imprisonment to be suspended for 12 months (cumulative) 7 March 2016
7 March 2016
Failure to appear in accordance with undertaking (on 25/11/2015) (s 33(1) BA) No conviction recorded. Fined $450.00. In default imprisonment: 4 days Breach of bail granted condition (between 14/12/2015 and 10/02/2016) (s 29(1) BA) No conviction recorded. Fined $600.00. In default imprisonment: 6 days Failure to appear in accordance with undertaking (on 10/02/2016) (s 33(1) BA) No conviction recorded. Fined $550.00. In default imprisonment: 5 days Breach of bail granted condition (on 27/10/2015) (s 29(1) BA) No conviction recorded. Fined $150.00. In default imprisonment: 1 day Unauthorised dealing with shop goods (maximum $150) (on 6/10/2015) (s 5(1)(c) RO) No conviction recorded. Fined $300.00. In default imprisonment: 3 days. Restitution: $70.00
Breach of bail granted condition (between 9/11/2015 and 9/12/2015) (s 29(1) BA) No conviction recorded. Fined $400.00. In default imprisonment: 4 days 29 August 2014 Contravene direction or requirement (on 16/10/2013) (s 791(2) PPRA) No conviction recorded. Fined $200.00.
The Minister’s original decision did not take into account the Applicant’s criminal history from Victoria. It was only discovered the week prior to the hearing that the Applicant was currently imprisoned in Victoria for armed robbery committed in Victoria, in May 2016. The material received from the Victorian Police showed the Applicant’s criminal history in Victoria as follows:[9]
[9] Exhibit R1, Extract of summonsed material – Victoria Police: Court Outcomes Report, Pending Charges Report, Sub Incident Summary Report, dated 21 May 2019.
Victoria
Court Date Offence Court Result 29 August 2018 Armed Robbery 3 years imprisonment, with a non-parole period of 18 months. Declared that the period of 271 days already served part of
pre-sentence detention.
I am satisfied the Applicant has a substantial criminal record for the purposes of section 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of more than 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(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 women or children or vulnerable members of the community such as 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 that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant is an un-partnered, 27-year-old man of Samoan heritage. He has no children. The Applicant was born in Auckland, New Zealand, on 19 May 1992. The Applicant first arrived in Australia as a seven-year-old on 9 October 1999 as the holder of a TY 444 visa. The Applicant has travelled overseas and returned to Australia on six occasions since his first arrival. On each occasion he was granted a TY 444 visa. The Applicant said that he had visited Samoa on two occasions and had visited New Zealand on the other four occasions. The Applicant spent seven months in New Zealand between October 2014 and May 2015. He said that he lived with his paternal aunt and her children, his cousins, during that trip.
The Applicant said that he had no recollection of life in New Zealand prior to his first arrival in Australia at the age of seven. The Applicant gave evidence that he arrived in Australia in 1999 with his parents and his younger sister. The Applicant said that he had a very good upbringing and that he was brought up as a “typical Islander” in a religious family. He said that his family were always supportive of one another.
The Applicant said that he had completed his schooling in Australia and left school to work before completing year 11 when he was about 16 or 17 years of age. The Applicant said that, apart from brief periods, he had always been employed on a full-time basis prior to going to gaol. The Applicant said that he began drinking alcohol when he was about 16. He said that at the time of his offending in 2015 and 2016 he had been drinking alcohol whenever the opportunity to do so arose. The Applicant said that he had also begun smoking cannabis when he was 16 years old and would smoke cannabis every day up until the point where he went to gaol.
The Applicant said that he began gambling at poker machines in around 2014. He said that he had increased his drinking and cannabis smoking around this time. The Applicant also explained that, while he had always lived with his parents, he had become distant from his family around the time that he began offending in October 2015.
The Applicant indicated that on 16 October 2015 he had been playing the poker machines with his cousin Steven. The Applicant said that he had borrowed $300 from Steven and that he lost this money that evening playing the poker machines. He said that his cousin needed him to repay the money. The Applicant indicated that he drove to a 7-Eleven convenience store and attempted to rob the store in order to repay his cousin.
The Queensland Police Service Court Brief and Schedule of Facts provide the police account of the events of that evening. The events of that evening were also described in the sentencing judge’s remarks of 4 October 2017. That information was put to the Applicant by the Respondent’s solicitor. Those documents indicate that at about 9:40 pm on 16 October 2015, the Applicant waited in the car park outside the 7-Eleven store for the victim, a shop attendant, to exit the secure counter area of the store to refill coffee cups next to the coffee making machine. As the victim was attempting to enter the security code to enter the secure counter area, the Applicant grabbed him from behind and demanded that the victim tell him the security code for the secure area. The victim refused and attempted to press an emergency alarm button. The Applicant then threw the victim to the ground. As the victim fell to the ground his head struck an ice cream fridge causing a minor cut behind is ear. The Applicant then fled the store. On 20 October 2015, the Applicant was arrested at his home address and made full admissions as to the offence.
The Applicant was released on bail to appear before the court on 30 October 2015. The Applicant failed to appear before court in relation to the charge of attempted robbery with personal violence. Indeed, the Applicant admitted to missing two court appearances in relation to the attempted robbery charge. He said that on the first occasion he was working and could not attend court. He gave no explanation as to why he did not attend court on the second occasion.
The Applicant’s criminal history as recorded in the National Police Certificate indicates that, on 7 March 2016, the Applicant was found guilty of two counts of failure to appear in accordance with undertaking and was to fined a total of $1000 in respect of these two offences. On the same date, the Applicant was found guilty of three counts of breach of bail granted condition and was fined a total of $1150 in respect of those offences. On the same day, the Applicant was also found guilty of unauthorised dealing with shop goods and fined $300. The Applicant indicated that he had no idea why he was found guilty of this last offence or what it related to.
In addition, on 5 October 2016, the Applicant was convicted of breach of bail granted condition and sentenced to 14 days imprisonment suspended for 12 months. On the same day, the Applicant was convicted of failure to appear in accordance with undertaking and sentenced to 14 days imprisonment suspended 12 months.
It is not surprising that the Applicant was found guilty of the above offences as he failed to appear in court regarding the attempted robbery charge on at least two occasions and indicated that he left Queensland for Victoria on 5 May 2016, possibly in breach of his bail conditions. The Applicant indicated that he left Queensland for Victoria to get away from the trouble that he had faced in Queensland and to make a fresh start in Victoria.
On 19 May 2016, the Applicant indicated that he was celebrating his birthday with a friend with whom he was staying in Victoria. He said that during the evening he and his friend had consumed alcohol and cannabis. He said that while celebrating he had found a piece of metal which resembled a handgun. He said that he had been playing with the piece of metal with his friend. The Applicant said that he had placed a piece of metal in his bag.
The Applicant indicated that around midnight he had decided to visit a female who he had met through Facebook. He said that he hailed a taxi. The Victoria Police Incident Summary Report indicated that the Applicant directed the taxi driver to take him to Thomastown. During the taxi ride the Applicant indicated to the driver that he was visiting from Queensland. Once the journey concluded the taxi fare was $49.20. Instead of paying the taxi fare, the Applicant produced a small item believed to be a handgun and threatened the taxi driver. The Applicant said that this was the piece of metal he had found earlier that evening. The Applicant ripped the top left shirt pocket of the taxi driver’s shirt and stole $100 from the taxi driver. He then ran from the scene. The Applicant said that he did not know why he robbed the taxi driver. He said that he had money on him at the time. He said that he was highly intoxicated and “drugged off my head” when the offending occurred.
The Applicant said that he returned to Queensland in June 2016.
While still on bail in relation to the attempted robbery charge, and after having committed armed robbery in Victoria in May 2016, the Applicant committed another armed robbery on 15 September 2016. The events of that evening were described in the sentencing judge’s remarks of 4 October 2017 as follows:[10]
“…In respect of count 2, on the 15th of September 2016 you ordered a taxi to pick you up – to pick you up at an address in Crestmead. After waiting for about two minutes, you appeared and walked down the driveway towards the taxi. You got into the front passenger seat and told the complainant that you wanted to be driven to Woodridge and that your wife would take care of the fare when you arrived. The complainant told you that he could not take you without money and asked for you to show some identification. You did not have any identification with you and you pleaded with the taxi driver to take you to Woodridge and obviously you succeeded in convincing the driver to take you. You directed him to go to North Road.
When the taxi was on Ewing Road, Woodridge near the Foodworks store, the complainant stopped the taxi meter. There were some further directions given and it resulted in the complainant stopping his taxi outside Parkdale Park on Cyprus Street, Woodridge. At that point you reached over and put the vehicle into park. You pulled out a 10 centimetre knife from your left pocket. You were motioning to stab the complainant in the chest and said, “Give me all your money. Otherwise, I will kill you.” The complainant said he would give you his money and asked you not to hurt him. You reached over with your left arm and removed $120 from the taxi driver’s left shirt pocket. You then grabbed the complainant’s left hand and pressed the knife to the top of his index finger and said, “I am going to cut your finger off if you do not give me more money.”
The complainant did not respond. You reached over and removed the coin dispenser and the complainant’s wallet from inside the driver’s door. The complainant estimated the money removed from his pocket, the coin dispenser and his wallet was between 150 and 200 dollars. You took the money out of the wallet and gave the complainant his wallet back. You got out of the taxi and ran off. The complainant called his taxi manager. CCTV footage showed you and you had some distinctive tattoos…”
[10] G Documents, G14, pages 98 – 102, Transcript of Proceedings – District Court of Queensland, 4 October 2017.
At first, the Applicant indicated that all of his offending had occurred because of his gambling problem and his overindulgence in alcohol and cannabis. The Applicant also indicated that he was upset because a man he called his uncle, who was in fact his first cousin’s husband, had passed away in New Zealand in September or October 2016. Later, the Applicant indicated that the primary reason why he had committed the armed robbery on 15 September 2016 was to gain money to assist with paying for his father’s airfare to attend his cousin’s husband’s funeral in New Zealand. The Tribunal also notes that in the personal circumstances form which the Applicant completed on 3 November 2017, the Applicant indicated that in addition to the death of his “uncle”, a cousin had committed suicide and these deaths lead to a period of alcohol abuse. The Applicant had indicated that this in turn had led to his offending. However at the hearing, the Applicant only mentioned the death of his “uncle” and not that of his “cousin” despite the Respondent’s solicitor specifically asking the Applicant whether his uncle was the only family member who had passed away. The Tribunal notes that the Applicant’s first cousin, Rev Faafetai Setefano, who gave evidence before the Tribunal, indicated that a friend of the Applicant, who the Applicant called a cousin, had committed suicide in early 2016.
The Tribunal notes that the Applicant’s serious offending began in October 2015 prior to the passing of the Applicant’s “cousin” and “uncle.”
The Applicant was arrested on 4 October 2016 in relation to breach of bail and failure to appear offences and it appears that he has been in criminal detention ever since.
On 4 October 2017, the Applicant was convicted of attempted robbery with violence and sentenced to 3 years imprisonment to be suspended for 5 years after serving 14 months imprisonment. On the same day, the Applicant was convicted with armed robbery and sentenced to 4 years imprisonment to be suspended for 5 years after serving 14 months imprisonment. The sentences were to be served concurrently.The Applicant’s non-parole period in relation to his Queensland offences ended on
3 December 2017. The Applicant was immediately taken into custody and extradited to Victoria on 5 December 2017 in relation to his Victorian armed robbery offence. On
29 August 2018, the Applicant was convicted of armed robbery and sentenced to 3 years imprisonment with a non-parole period of 18 months. About 9 months of that 18 month non-parole period was taken to have been served by way of pre-sentence detention. Thus, the Applicant will be eligible for release on parole in late June or early July 2019. At the hearing the Applicant indicated that he understood that he was eligible for release on parole in July 2019.
During his time in prison in Queensland the Applicant was found to have committed disciplinary violations on four occasions. The first occurred in January 2017. The Applicant pleaded guilty to yelling an obscenity at a female corrections officer. This was recorded to be a minor breach for which the Applicant was reprimanded. At the hearing the Applicant indicated that he had not yelled at the female corrections officer but had pleaded guilty in order to keep his job within the correctional facility. The Tribunal places no weight on this minor infraction.
The second disciplinary violation occurred on 27 February 2017. The Applicant indicated that he was trying to break up a fight but ended up becoming involved in the physical altercation. At the hearing, the Applicant indicated that he had tried to break up a fight between a friend of his and another prisoner. He said that while he was trying to break up the fight someone said something to him and he retaliated by hitting the other person. The Applicant was dealt with in accordance with the Corrective Services Act 2006 (QLD).The Applicant pleaded guilty to the violation and was punished with loss of privileges for 5 days.
On 21 April 2017, the Applicant was dealt with under the Corrective Services Act 2006 (QLD) for fighting. The Applicant pleaded guilty to the violation and was reprimanded. At the hearing the Applicant explained that he had been sparring with another prisoner. That explanation appears consistent with the documents provided by the Respondent.
On 22 July 2017, the Applicant was alleged to hold another prisoner against a wall and then punch him in the face with a closed fist. It is not clear whether this activity was dealt with under the Corrective Services Act 2006 (QLD). However at the hearing, the Applicant admitted that he punched another prisoner after he and the other prisoner got into a heated argument because the other prisoner was “trying to look down” on the Applicant. The Applicant indicated that he was not punished as a result of this incident.
The Tribunal does not have any disciplinary records for the Applicant relating to his imprisonment in Victoria.
The Applicant indicated that he would be devastated if he had to leave Australia and return to New Zealand. He indicated that he had arrived in Australia aged seven, lived in Australia for most of his life and all of his immediate family members, that is, his parents and his sister, lived in Australia. The Applicant indicated he would suffer great hardship if he had to return to New Zealand. He indicated he had not been able to sleep properly for the last couple of months. He said that his family would be greatly affected if he had to leave Australia and that he did not want the lives of his family to be disrupted by his removal from Australia.
The Applicant indicated that in addition to his family here, he had friends in Australia. The Applicant indicated that he did not ask his friends to provide statements in support of his application as he believed that statements from his family would carry the most weight.
The Applicant indicated that his father had recently attended a church meeting in Samoa and was currently in New Zealand visiting family. The Applicant indicated that he believed that his father had remained in New Zealand as his father believed that the Applicant would be removed from Australia after the Tribunal hearing and was awaiting the Applicant’s arrival in New Zealand. The Applicant indicated that he had not had discussions with any of his family members as to whether they would return to New Zealand with him if he had to depart Australia. The Applicant indicated that, in addition to his immediate family in Australia, he had a number of extended family members living in Australia. These included his cousin the Reverend Faafetai Setefano, his wife and their two adult children. They also included his cousin Steve Setefano, his wife and their adult child.
The Applicant indicated that he had a paternal aunt and two paternal uncles who lived in South Auckland, New Zealand. The Applicant also indicated that he had a maternal aunt who lived in Wellington, New Zealand. The Applicant indicated that he was close with his family on his father’s side in New Zealand including his aunt and uncles and their children, his cousins. As mentioned previously, the Applicant resided with his aunt and her children in New Zealand for a period of about seven months in 2014 and 2015. The Applicant indicated that if he had to return to New Zealand he would live in Auckland.
The Applicant indicated that he would not reoffend if he remained in Australia. The Applicant indicated that he wanted a chance to remain in Australia to make amends for his offending. The Applicant indicated that he had been in prison for almost 3 years and that he had been learning his lesson during that time. He said that being in gaol had been a “wake-up call”. The Applicant said that, in that sense, being in jail had been good for him, that it had “got me back down to earth and found my morals again.”
The Applicant indicated that he had undertaken some rehabilitation courses. The Applicant indicated that he had taken part in a program called “Do It” which the Applicant described was a drug and alcohol rehabilitation program which taught attendees ways to deal with stressful situations other than resorting to drugs and alcohol. The Applicant indicated that he attended this course twice a week for about three hours on each occasion for a month. That is eight, three hour sessions.
The Applicant indicated that he attended a one-day course called “Strong Not Tough”. The Applicant also indicated that he had participated in a support group called “My Story“ for about a year. That support group was facilitated by a pastor and others who encouraged participants to speak with each other about their experiences. The Applicant indicated that he had also completed a number of vocational courses in prison.
The Applicant indicated that he had abstained from drugs and alcohol in prison despite their availability there.
Witness 1 – Reverend Faafetai Setefano
Reverend Setefano is the Applicant’s first cousin. The Reverend provided a statement to the Tribunal in support of the Applicant and provided evidence at the hearing. The Reverend indicated that the Applicant had committed his various offences in order to gain money to support his family. The Reverend indicated that the Applicant was a good person with a loving heart; that he was not a bad person. The Reverend indicated that he believed that, if the Applicant was given the opportunity, he would never reoffend. He said that he and his church were willing to provide whatever support they could to make sure that the Applicant would never reoffend.
The Reverend indicated that the Applicant’s parents had been severely adversely affected by the Applicant’s offending and his subsequent imprisonment. He said that all that the Applicant’s parents wanted was a chance to reunite with their son in Australia.
The Reverend indicated that the Applicant had always been very active in the church. The Reverend indicated that, towards the end of 2015, the Applicant began associating with “the wrong people.” The Reverend indicated that in October every year the Samoan churches celebrated “Children’s Sunday” and that the Children’s Sunday in October 2015 was the first one that the Applicant had failed to attend. The Reverend indicated that from around September 2015 the Applicant began to miss church. However the Reverend indicated that, as a family member, he would continue to see the Applicant every week.
The Reverend described the Applicant as kind-hearted, responsible and that, prior to his offending, he was a role model for young people in the church. The Reverend indicated that the Applicant was a very talented young person who excelled at Samoan cricket.
The Reverend indicated that he was a father figure to the Applicant and that the Applicant had grown up around him. Additionally, he said that as he was church minister, the Applicant considered the Reverend to be his spiritual father and mentor. He said by October 2016, he had re-introduced the Applicant to the church but that shortly thereafter, the Applicant was arrested for his offences. The Reverend said that, not only was the Applicant’s family affected by his imprisonment, the members of his church were also negatively affected.
The Reverend indicated that, when the Applicant was imprisoned in Queensland, he would visit the Applicant in prison every week and would speak with him regularly over the telephone. He said that, since the Applicant has been imprisoned in Victoria, he would speak with the Applicant by telephone every second week. The Reverend indicated that the Applicant had a lot to offer to the Australian community and begged that he be given another opportunity to remain in Australia. The Reverend said that he trusted the Applicant would never reoffend. He said that he and the church would provide whatever mentoring or rehabilitation courses that the Applicant needed in order to ensure that he did not reoffend.
The Reverend indicated that, while he and the Applicant had family in New Zealand, he was not sure how the Applicant would fare living in New Zealand. The Reverend indicated that if the Applicant were required to depart Australia this would be very difficult for the Applicant’s parents and his sister and also for members of the church and the Applicant’s friends.
During cross-examination the Reverend indicated that he only became aware that the Applicant was involved with alcohol and drugs after he was arrested. He indicated that he was not aware that the Applicant was a gambler.
The Reverend indicated that he understood that the Applicant’s parents would return to New Zealand if the Applicant were required to leave.
Witness 2 – Uaina Lemalu-Tiai
Uaina Lemalu-Tiai is the Applicant’s younger sister. The Applicant’s sister had provided the Tribunal with a written statement and gave evidence during the hearing. The Applicant’s sister indicated that she understood that the Applicant had committed “just a few armed robberies” but she did not know how many. She said that she was very close with the Applicant and that they had a good upbringing. She said that they would attend church every Sunday and were always there for each other. She said that nothing bad ever happened to her during her teenage years because her brother would always protect her. She said that they had a loving and caring relationship.
The Applicant’s sister indicated that since the Applicant has been in prison she has spoken with the Applicant every day or every second day.
The Applicant’s sister indicated that she believed that the Applicant should be allowed to remain in Australia for the sake of their family. She indicated that she and the Applicant were the only two children of her parents. She said that without the Applicant her family would be a “broken family.”
The Applicant’s sister indicated that the Applicant’s imprisonment has been difficult for her as it has been left to her alone to care for their ageing parents. She indicated that her father had health problems. She said that her mother would be devastated if the Applicant were not allowed to remain in Australia. She said that she was worried that, if the Applicant had to return to New Zealand, her parents would leave Australia to live with the Applicant in New Zealand, leaving her in Australia without her family.
The Applicant’s sister indicated that although all of her father’s siblings lived in New Zealand or Samoa, her mother had a sister and brother living in Australia, as well is one sister who lived in Wellington, New Zealand.
The Tribunal has also considered the various letters provided by the Applicant including from his parents, his sister, various church ministers, members of the Applicant’s church, friends and former employer.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The nature of the Applicant’s offending has been described above. It involved an attempted robbery using violence and two armed robberies. In addition, the Applicant has a number of offences for failing to appear before Court in relation to those offences and breaching bail conditions. Further, there is evidence that the Applicant committed violent disciplinary breaches while in prison.
The Applicant’s robbery related crimes were serious violent offences. They were committed against vulnerable members of the community who were working at night time in a convenience store and as taxi drivers. As the sentencing judge remarked:[11]
“…Taxi drivers and workers at convenience stores are particularly vulnerable to criminals like you coming in and using violence and threats of violence to steal money. The Courts have always viewed such matters as very serious and that condign punishment is to be dished out for people once convicted of them. Taxi drivers in particular are especially vulnerable, particularly those who work late at night.”
[11] G Documents, G14, pages 98 – 102, Transcript of Proceedings – District Court of Queensland, 4 October 2017.
The Applicant was sentenced to significant periods of imprisonment for each of his violent offences. In relation to the attempted robbery offence in Queensland in October 2015, he was sentenced to 3 years imprisonment suspended for five years after serving 14 months. In relation to the armed robbery offence in Victoria in May 2016, the Applicant was sentenced to 3 years imprisonment with a non-parole period of 18 months. In relation to the armed robbery offence in Queensland in September 2016, the Applicant was sentenced to 4 years imprisonment to be suspended for five years after serving 14 months. The sentences strongly indicate that the Applicant’s offending was very serious.
The three instances of serious violent offending were all of a similar nature. That is, the Applicant used violence and the threat of extreme violence to extract money from victims.
The Tribunal initially had some concern that the Applicant had sought to hide from the Tribunal his offending in Victoria as this was only brought to the Tribunal’s attention a week prior to the hearing. However, for the purposes of this decision, the Tribunal is willing to accept the Applicant’s evidence that he believed that all of his offences had been disclosed to the Department and the Tribunal.
The cumulative effect of the Applicant’s offending was that before his arrest, he presented a great risk to the health and safety of members of the Australian community. He harmed or threatened to harm innocent civilians working in vulnerable jobs at night time.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent offences. This is such a case. If the Applicant were to reoffend in a similar manner, this would likely result in physical and psychological harm to victims and possibly severe harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s history of offending has been outlined above. He attempted robbery of a convenience store using violence which resulted in harm to a convenience store employee. He then failed to appear on at least two occasions before the Court to be dealt with in relation to the attempted robbery. Instead, he travelled to Victoria, possibly in breach of his bail conditions, where he committed an armed robbery on a taxi driver while on bail for the attempted robbery. He then returned to Queensland and committed another armed robbery, while he was still on bail for the attempted robbery offences, for which he had continued to fail to appear before Court. By this point, the Applicant had been found guilty of a number of offences for breach of bail and failure to attend in accordance with an undertaking. He was eventually arrested for his offences of breach of bail and failure to attend on 4 October 2016. He has been in prison since. The Tribunal has no evidence as to the Applicant’s behaviour since his transfer to prison in Victoria on 5 December 2017. However, between 4 October 2016 and 5 December 2017, the Applicant was dealt with for a number of violent violations committed by the Applicant while he was in prison as described above in paragraphs 54 – 58.
The Applicant has undertaken some rehabilitation courses which included “Do It”, a month long drug and alcohol rehabilitation course which he attended on eight occasions for three hours on each occasion. He also attended a one-day course called “Strong Not Tough.” In addition the Applicant attended a support group while he was imprisoned in Queensland. The Applicant has admitted that he has not undertaken any further rehabilitation courses in Victoria since he was transferred there in December 2017. As mentioned above, the Applicant has said that he will not reoffend. He said that his time in prison has been a wake-up call and that he has not offended since he has gone to prison. The Applicant indicated that he has abstained from drugs and alcohol in prison despite their availability there.
The Applicant indicated that he would not reoffend as he did not want to put his family through the harm that would result by his imprisonment in the future. The Applicant’s cousin, the Reverend Setefano, has also indicated that he trusts that the Applicant will not reoffend. He said that he and his church will provide whatever support they can to ensure that the Applicant does not reoffend.
The Tribunal is not satisfied that the Applicant will not reoffend. While the Applicant indicated that prison had changed him, that he had ceased consuming alcohol and cannabis, and that he did not wish to put his parents through any further pain by reoffending, the Applicant has continued to act violently towards others while he has been in prison. In reaching this conclusion, the Tribunal has considered the applicant’s claims and those of the sentencing judge which indicate that the Applicant is remorseful for his criminal conduct. In addition, the Applicant has always been gainfully employed, and has had the support of his family and his church, and yet this did not prevent him from offending in the past.
The Tribunal is also not satisfied that the Applicant’s offending resulted from the loss of his “cousin” and “uncle”. As mentioned previously, it does not appear that either of these people were blood relations and the Applicant committed his first serious crime of attempted robbery in October 2015 before the death of either his “cousin” or “uncle”.
The Tribunal does not accept that the Applicant committed the offences to provide money for his family. The Applicant’s evidence was initially that he was intoxicated during his offences and had a gambling problem. While the Tribunal is willing to accept that the Applicant provided some money from his third offence to his family to assist with airfares for his father to travel to New Zealand for a funeral, the Tribunal does not accept that providing for his family was a primary motivation for his offences.
After considering the above, and all of the evidence provided in documentary form and orally at the hearing, the Tribunal finds that there is a real risk that the Applicant will reoffend if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offending conduct was very serious and involved him using violence or the threat of extreme violence to rob or attempt to rob vulnerable members of the community. His offending also extended to failing to appear before court to be dealt with for his offences and breaching the conditions of his bail on numerous occasions.
The Tribunal has found that if the Applicant were to reengage in similar criminal conduct it is likely the nature of the harm to victims would be that they would suffer physical and psychological harm and possibly severe harm.
The Tribunal has found that the Applicant continues to present a real risk of reoffending if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa.
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances the Tribunal places no weight on this consideration.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction states:
“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.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348 (“Uelese”); Afu v Minister for Home Affairs [2018] FCA 1311 (“Afu”); and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation.
In Doan, I also found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).
The fact that Direction 79 is relevant to this matter, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes.
In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.
Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.
Since my decision in Doan, the Federal Court on 11 April 2019 handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are FYBR v Minister for Home Affairs [2019] FCA 500 (“FYBR”) and DKXY v Minister for Home Affairs [2019] FCA 495 (“DKXY”).
In FYBR her Honour Perry J concluded at [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese; Afu and YNQY.
In DXKY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached on numerous occasions by the Applicant committing serious violent crimes and then failing to appear before Court for those crimes and also failing to abide by his bail conditions. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[12] In the present matter the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
[12] See paragraph 6.3(2) of the Direction.
The Tribunal considers that the Australian community would find that much Applicant’s conduct was serious and some of it, including his violent conduct, was very serious. The Tribunal considers that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[13]
[13] See paragraph 6.3(3) of the Direction.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s family in Australia and that the Applicant has lived in Australia since he was seven-years-old and for most of his life. The Tribunal is willing to accept that the Applicant, through his employment, involvement in the community and the church was, making a valuable contribution to the community prior to his serious offending.
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending, that there is a real chance that he will reoffend, and notwithstanding the negative effects on the Applicant’s family in Australia if the cancellation of his visa is not revoked and the lengthy time the Applicant has spent in Australia since he was seven-years-old, the Tribunal finds that the Australian community would consider that the risk of future harm to the community is unacceptable and that the Tribunal should not revoke cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs against revocation of the cancellation of the Applicant’s visa. The Tribunal places moderate weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
(a) International non-refoulement obligations
Neither party has raised any issue about non-refoulement regarding the Applicant, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(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 noncitizen 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.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation 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).
The Applicant first arrived in Australia in 1999 as a seven-year-old. He completed his schooling in Australia and has lived in Australia ever since, apart from the departures from Australia as outlined above in paragraph 2. For most of that time the Applicant has been contributing to the Australian community through paid employment and his involvement with the church. The Applicant’s offences were committed between 2015 and 2017, well after he had arrived in Australia in 1999. The Applicant did not begin offending soon after arriving in Australia and there is no evidence the Applicant committed any offences as a juvenile.
The Tribunal has taken into account statements of the Applicant’s family members in Australia and others who have provided statements in support of the Applicant as being relevant to the Applicant’s ties to Australia.
The Tribunal has taken into account the hardship to the Applicant’s immediate family members which will result from the Applicant being removed from Australia. The Tribunal accepts that both of the Applicant’s parents and his sister will be severely negatively impacted if the Applicant has to return to New Zealand. Is not clear whether the Applicant’s parents will remain in Australia or return to New Zealand if the Applicant’s visa remains cancelled. In either case they will be severely adversely affected, either by being separated from the Applicant, or by having to leave their home in Australia and relocating to New Zealand. The Tribunal also considers that the Applicant’s sister will be severely adversely affected if the Applicant’s visa remains cancelled. The Tribunal accepts that the Applicant and his sister are very close, that she is likely to remain in Australia if the Applicant’s visa remains cancelled, and that this will result in the separation of the Applicant’s sister from the Applicant and potentially from her parents. The Tribunal has also taken into account that the Applicant’s friends, members of the Applicant’s church and the Samoan community in Brisbane who know the Applicant, are likely to be negatively affected by his departure.
The Tribunal has also taken into account under this consideration the hardship to the Applicant which will result if he must leave Australia. If it had not, the Tribunal would have considered this matter as a separate “other” consideration. The Tribunal accepts that the Applicant will be severely adversely affected if he has to relocate to New Zealand. All of the Applicant’s immediate family are here, as are all of his friends. The Applicant was raised in Australia since he was seven-years-old, completed all of his schooling here, has only been employed here and has strong connections with his church here.
Overall, the Tribunal finds that the Applicant has strong and enduring ties to Australia forged over a lifetime. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances, the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“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 direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a relatively young man of 26 years of age and appears to be of good health. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in New Zealand. As a citizen of New Zealand, the Applicant will be entitled to any social, medical and economic support available to New Zealand citizens in New Zealand.
The Applicant has always been gainfully employed in Australia, and this augurs well for his employment prospects in New Zealand. There is also no apparent reason why the Applicant could not continue his involvement with the church in New Zealand.
The Tribunal finds that the Applicant will face difficulty in re-establishing himself in New Zealand. He has lived almost his entire life in Australia and has deep and lasting connections to this country and its people. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia.
While the Tribunal accepts that it will be difficult for the Applicant to re-establish himself in New Zealand, the Tribunal considers that there are a number of factors which will assist the Applicant in re-establishing himself there including his strong employment history and that he has a number of close family members in New Zealand including an Aunt and cousins who he has resided with previously.
The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes moderate weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that the Applicant’s violent offences were very serious, that there would be great harm to Australian citizen’s and residents if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke cancellation of the Applicant’s visa, notwithstanding the harm to his family members that non-revocation would cause and the great length of time that the Applicant has spent living in Australia since he was a child.
On the other hand, the Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. The Tribunal has found that the Applicant and his immediate family will be significantly adversely affected if the cancellation decision is not revoked. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour both individually and cumulatively. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 146 (one hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
.......................................................................
Associate
Dated: 11 June 2019
Date of hearing:
29 May 2019
Applicant:
By video link
Solicitor for the Applicant:
Ms Jennifer Samuta
Samuta McComber Lawyers
Solicitor for the Respondent:
Mr Jake Kyranis
Sparke Helmore Lawyers
ANNEXURE A - EXHIBIT REGISTER
File No 2019/1711................................................................................................................
Between Matthew Gregory LEMALU................................................................. (Applicant)
And Minister for Home Affairs............................................................... (Respondent)
Heard on Wednesday.................................. the 29th......... ….day of May............. 2019........
At Brisbane..................................................................................................................
Before Member T Eteuati....................................................................................................
Respondent Documents
Date Received
Section 501 G Documents (pages 1 to 163) 15 April 2019 Respondent’s Statement of Facts, Issues and Contentions dated
17 May 20195 April 2019
Applicant Documents
Date Received
Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2019 29 April 2019 Applicant’s Reply, dated 24 May 2019 24 May 2019 Applicant’s Evidence
Exhibit Number
Description of Evidence
Date Received
A1 Statement of Matthew Gregory Lemalu, dated 24 May 2019 24 May 2019 A2 Statement of Mati and Ema Lemalu, dated 22 April 2019 24 May 2019 A3 Extract of Passport of Mati Lemalu with Immigration arrival stamp 24 May 2019 A4 Statement of Rev. Perelini Tauilo, dated 9 May 2019 24 May 2019 A5 Statement of Uaina Lemalu-Tiai, undated 24 May 2019 A6 Statement of Rev. Hosea Tulua, dated 19 April 2018 29 April 2019 A7 Statement of Rev. Faafetai Setefano B.D, BSc, LTH & all Church Families 29 April 2019 A8 Document titled: All supporting and praying for Matthew Gregory Lemalu, undated 29 April 2019 A9 Statement of Meaalofa Mamea, dated 18 April 2018 29 April 2019 A10 Statement of Ale Lepau from Australian Framing Solutions, undated 29 April 2019 A11 External Education Summary for Matthew Lemalu from Dept. Justice and Attorney-General 24 May 2019 A12 Document titled: Director of Public Prosecutions v Matthew Lemalu, Prosecution Chronology and Record of Orders made in the Criminal Jurisdiction County Court – Victoria dated 29 August 2018 24 May 2019 Respondent’s Evidence
Exhibit Number
Description of Evidence
Date Received
R1 Extract of summonsed material – Victoria Police: Court Outcomes Report, Pending Charges Report, Sub Incident Summary Report dated 21 May 2019 24 May 2019 R2 Queensland Police Service – Court Brief, dated 18 April 2019 17 May 2019 R3 Document titled: Schedule of Facts R v Matthew Gregory Lemalu 17 May 2019 R4 Dept. of Justice and Attorney-General, Offender Case File, created on 23 April 2019 17 May 2019 R5 Dept. of Justice and Attorney-General, Violation History, created on 23 April 2019 17 May 2019 R6 Dept. of Justice and Attorney-General, Breach – 25 Jan 17 10:40PM, created on 23 April 2019 17 May 2019 R7 The GEO Group Australia Pty Ltd, Officer’s Report, dated 25 January 2017 17 May 2019 R8 Dept. of Justice and Attorney-General, Incident 201552 – 27 Feb 17, created on 23 April 2019 17 May 2019
Exhibit Number
Description of Evidence
Date Received
R9 Dept. of Justice and Attorney-General, Breach – 27 Feb 17 4:01PM, created on 23 April 2019 17 May 2019 R10 Document: Form 23 – Queensland, Breach of Discipline, dated 12 March 2017 17 May 2019 R11 Dept. of Justice and Attorney-General, Incident 205121 – 21 Apr 17, created on 23 April 2019 17 May 2019 R12 Dept. of Justice and Attorney-General, Breach – 21 Apr 17 7:43AM, created on 23 April 2019 17 May 2019 R13 Document: Form 23 – Queensland, Breach of Discipline, dated 1 May 2017 17 May 2019 R14 Dept. of Justice and Attorney-General, Incident 212180 – 22 Jul 17, created on 23 April 2019 17 May 2019 R15 Dept. of Justice and Attorney-General, Incident 213594 – 13 Aug 17, created on 23 April 2019 17 May 2019 R16 Document: Form 23 – Queensland, Breach of Discipline, dated 28 August 2017 17 May 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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