Lesuma and Minister for Immigration and Citizenship

[2007] AATA 1731

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1731

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2799

GENERAL ADMINISTRATIVE DIVISION        )

Re             Ilimo Tulevu LESUMA

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date4 September 2007

PlaceSydney

DecisionThe decision under review is affirmed.

...................[sgd]...........................

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – applicant’s visa cancelled for failure to pass character test – Character test – applicant fails because of his substantial criminal record – Exercise of Discretion – applicant’s criminal record can only be viewed as very serious and includes assault of police, escaping police custody and criminal activity while on bail for charges relating to other offences – applicant has re-offended repeatedly over the last 6 years – record of relapses indicates a significant risk of recidivism in this case – applicant has previously failed to take advantage of numerous opportunities for rehabilitation – community expectations would clearly favour visa cancellation in this case – primary considerations of community protection and expectations outweigh the other considerations in this case – decision under review affirmed.

RELEVANT ACT/S:

Migration Act 1958: ss 499(1), 499(2), 499(2A), 500(6B), 501, 501(2)(a) and (b), 501(6)(a) , 501(7), 501G

CITATIONS:

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781

Al-Kateb v Godwin (2004) 219 CLR 562

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

OTHER REFERENCES:

Direction No 21

International Covenant on Civil and Political Rights

I.A. Shearer, Starke’s International Law, 11^th edn. Sydney 1994

I Brownlie, Principles of International Law, 5^th edn. Oxford 1998

Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43

REASONS FOR DECISION

4 September 2007	Professor GD Walker, Deputy President
Summary

1.      The applicant was born in Fiji and came to Australia in 1999 at the age of 19.  From 2002 onwards he incurred numerous criminal convictions, including terms of imprisonment totalling more than 10 years.

2. On 30 May 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act1958 (the Act).  The applicant sought review of that decision on 29 June 2007 by application to this tribunal.

3. At the hearing, the applicant was unrepresented, although his father presented submissions on his behalf. The respondent was represented by Mr Scott Moloney of DLA Phillips Fox. 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 his father gave oral evidence in person.

Issues

4.      The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act, and

(ii)if not, 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

5. 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 ground in the current matter is set out in paragraph (a), as follows:

…

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);

…

6. “Substantial criminal record “ is defined in s 501(7)

…

(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

(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;

…

7.      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 the 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.

8. 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.

Basic facts

9.      The applicant Ilimo Tulevu Lesuma was born in Fiji on 14 November 1979, the eldest of four boys and two girls.  His parents, Mr Sakiusa Lesuma and Ms Lusiana Naulauvula, separated when he was 10 and he went to live with an uncle.  At that stage he began smoking marijuana.  In 1999, his father, who was in Australia at the time, returned to Fiji and applied for custody of all the children and arranged for them to migrate to Australia.

10.     The applicant arrived in Australia on 12 August 1999 on a subclass 101 (child) visa and has not left the country since.  In 2000, he had a relationship with an Australian girl and moved to Orange, New South Wales, to live with her, quitting his job as a security guard in Sydney.  He enrolled at TAFE in Orange in order to finish Year 12 so that he could later study to become a navy apprentice.  His girlfriend was a regular cannabis user.  When the relationship broke down, the applicant resorted to heavy drinking and regular marijuana use.

11.     In 2001, he began to associate with drug-using elements who resorted to crime to finance their habits.  His criminal history began from that time.

12.     On 16 April 2003, he was convicted of assaulting a police officer in the execution of duty and possessing implements to enter/drive a conveyance and was sentenced to 12 months' imprisonment with a non-parole period of six months for each count.

13.     He was convicted of robbery in company on 28 May 2003 and sentenced to three years' imprisonment, with a non-parole period of 12 months.

14.     The applicant's criminal history is outlined in more detail in annexure “A” to Exhibit R9, but may be summarised by saying that he has a lengthy record of other criminal convictions dating back to 2002, his most recent conviction being in February 2007 on a charge of affray, for which he was sentenced to nine months' imprisonment.

15.     His other convictions include:

§Resisting or hindering police officer in the execution of duty;

§Larceny of goods to a value less than $2,000;

§Goods in personal custody reasonably suspected of being stolen;

§Affray (additional to that mentioned in para 14 above);

§Possessing prohibited drug;

§Shoplifting of goods to a value less than $2,000;

§Receiving or disposing of stolen property to a value less than $5,000; and

§Escaping from police custody.

16.     The cumulative total period of time to which the applicant has been sentenced to imprisonment is a little over 10 and a half years.

17. A delegate of the respondent sent the applicant on 2 April 2007 a notice of his intention to consider cancelling the applicant’s visa under s 501(2) of the Act (Cth). The applicant did not respond to the notice or provide any submissions in relation to it.

18.     On 30 May 2007 a delegate of the respondent made the decision to cancel the applicant's visa and provided a written statement of reasons dated 8 June 2007.  The applicant applied to this tribunal for review of that decision on 29 June 2007.

The applicant’s evidence

19.     At the hearing the applicant adopted his two written statements (Exhibits A2 and A3) in which he stated that he believes he would be a good member of the community and a law-abiding citizen.  His father would support him in dealing with his everyday mental, personal, physical, social and financial needs and would also take him to Canterbury hospital for a mental check-up to show that he is in good mental condition.  He would also attend his father’s Assembly of God church at Lakemba every Sunday as well as weekdays, taking Bible study courses to change him into “a good person living in Christ” (Exhibit A2).

20.     He would also like to join football teams in order to keep himself physically fit so he could work hard to support himself personally and financially.  He would like to have a social life enabling him to meet different kinds of people who could help him to abide by the laws of the country.

21.     His family and friends have supported him strongly in seeking to change his life and he is willing to participate in rehabilitation programs provided by the Lakemba Fijian Community Church.  The programs include spiritual counselling, youth group participation and other sports activity, all designed to cure him from drug addiction and to help him to learn from his mistakes.

22.     He has been involved with a music education program and practises every night.  He aims to become a musician and looks forward to being employed.  He believes he is able to show that he has a good attitude to the community and asks for a second chance to hold an Australian visa.

23.     At the hearing he was a co-operative witness, but his evidence was difficult to follow because he was extremely softly spoken, a problem that health consultants have noted in the past (Exhibit R1, reports of 7 December 2006, 13 February 2007).  He appeared to have considerable difficulty remembering the events of his life, commenting that there were “so many things in the past” and repeatedly denying that, or expressing doubts whether, he had made the statements attributed to him in mental health reports (Exhibit R1).

24.     He admitted to a long history of drug abuse, including the use of marijuana since the age of 14 when he was still in Fiji.  He had used amphetamines since 2004 but said he had never used cocaine or heroin, although he later admitted that a friend had given him a drug that might have been heroin.  He said he could not recall telling a psychiatric nurse that he had started using marijuana at the age of five.  He had not drunk alcohol regularly in Fiji.

25.     He admitted that he had never undertaken the drug and alcohol rehabilitation courses that had been offered to him.  He also conceded that he had committed offences while on bail and had thrown away several chances that had been given to him by the criminal justice system to reform and make a fresh start.

26.     While on bail in 2002, he had returned to stay with his father who had advised him to break free of drugs and to find employment.  He had obtained a job, but did not like it and it was far from home.  It was, he conceded, nevertheless a chance for rehabilitation which he had allowed to slip away, having been charged five weeks later for shoplifting.  He had received an 18-month good behaviour bond and had undertaken to participate and complete drug and alcohol rehabilitation and anger management programs.  He had simply forgotten about the rehabilitation course.  Ten weeks later, in January 2003, he was charged and later convicted with several further offences, including assaulting a police officer in the execution of duty and resisting an officer in the execution of duty.  His bail violations had resulted from disputes he had had with his family, mainly over his continuing drug use.  Nevertheless, he had realised that he should have behaved while on bail and his father had offered him every assistance to do so.

27.     While in jail, he had continued to use drugs that he had been able to obtain, including marijuana and amphetamines, although he knew he should not be doing so.  He consequently failed a drug test.  He committed several offences while in custody, including making a knife out of a toothbrush and custody of a kitchen knife.

28.     His attention was drawn to a passage in Judge Dodd’s sentencing remarks at Penrith District Court on 28 May 2003 (G p58), where his Honour noted that the applicant’s situation had altered significantly in that he had reduced his contact with other young men involved in offending behaviour.  Instead, he had chosen to associate with the Fijian community church, his family and involving himself in sport.  There was evidence that he had begun to develop some supporting and positive relationships and at that stage gained employment.  “However, that again changed apparently you drifted away from those positive relationships and activities.  Your bail reporting became unreliable and you had been untruthful and not entirely forthcoming in relation to your employment and social activities” (G p58).  He admitted the correctness of those comments and explained that his relapse resulted from influence from friends, especially when on drugs.  He had another friend who was a policewoman, who had urged him to stay out of trouble, but at the time he was regularly using marijuana and another drug a friend had given him, which might have been heroin.

29.     After his release on 5 December 2005, he had returned to stay with his father, who was still counselling him on how to turn his life around.  On 6 May 2006, however, he was charged with affray.  His brother had introduced him to some friends of his.  They had begun drinking and a riot broke out, although the police made no arrests until two days later.  He admitted being involved in mêlée but did not say to what extent.

30.     At the sentencing hearing on 13 February 2007, his father had again supported him and the judge had thought there was still some chance of rehabilitation.  After his release in February 2007, he reported to his parole officer only once, but did not try again.  At the time he was using marijuana and “ice” (which I understand to be a form of methylamphetamine) which he purchased from his Centrelink job search payments.  He did not use other drugs because they were too expensive.

31.     He said he has family in Fiji who would help him if he were returned to that country.  His mother lives there, as do a number of uncles, aunts and cousins.  His mother visits Australia from time to time and he has some communication with her through visits and telephone conversations.

Other evidence for the applicant

32.     The applicant’s father, Mr Sakiusa Lesuma, tendered two statements (Exhibits A4 and A5) and gave oral evidence.  He pointed out that the applicant’s teenage years, from the ages of 13 to 20, were unblemished and free of any involvement in criminal activities.

33.     He believes that the applicant suffers from an undiagnosed mental condition possibly resulting from brain injuries suffered in sport and as a result of an assault outside a Penrith nightclub.  He conceded, however, that there was no medical evidence to support that theory.

34.     His mental condition had suffered through his use of drugs, which had affected his normal judgment.

35.     The Lakemba Fijian Community Church stood ready to help rehabilitate him.  His failure on previous occasions to present himself for rehabilitation programs stemmed from the fact that at the time he was living on the street and using drugs that affected his mental abilities and undermined his constructive thinking.  As a result, he had frequently re-offended.

36.     The Lakemba church program would meet community expectations and would be the ideal rehabilitation program to help the applicant to break away from his drug habit.  He has now realised the situation he is in and has expressed to his father total willingness to complete the program and other additional forms of rehabilitation, including professional consultations and treatments.  He deserved another chance to turn his life around.  If he were to return to Fiji without being rehabilitated, it would not only cause hardship, but financial hardship to his father in trying to organise his rehabilitation there.  Medical facilities in Fiji are limited and there have been strikes of workers and professionals in the medical sector.

37.     Mr Lesuma believes that the risks of recidivism are now greatly reduced.  Admittedly he had been given chances to reform before, but Mr Lesuma had always believed that his son would have responded more successfully if he had received more treatment.

38.     Although he had fallen away from the church group that was helping him in 2003, he had now changed positively and was trying hard to rebuild his life, but needed more help from other people.  Mr Lesuma was prepared to help on a 24-hours a day basis to turn the applicant’s life around, here or in Fiji, but it would be harder if the applicant were in Fiji because Mr Lesuma would have to fly to Fiji to help him.  It would be more difficult to set him up medically in that country.

39.     Mr Lesuma agreed that the applicant had been introduced to drugs in Fiji, but said he had not for some time realised the full extent of his involvement.  He had been the applicant’s guarantor for bail and parole several times and had tried to help and encourage him to undertake rehabilitation.  He had urged him to take responsibility for his life but had been disappointed.  He agreed that there was only so much he could do to help a grown man.

40.     Mr Lesuma conceded that the applicant had brought his mental problems on himself through his drug abuse, but believed that his problems could have been contributed to by the head injuries previously mentioned, which had not been medically investigated.  He had not been referred to a specialist for that purpose and Mr Lesuma had not followed up the matter.  The applicant’s mother and paternal uncle live in Fiji, as well as a number of uncles on his mother’s side, but the latter group were undesirable.  If the applicant were removed to Fiji he would receive some help, but not as much as Mr Lesuma would like.

41.     While the applicant had been in jail, he had not often visited him, but they had regular telephone contact.  He acknowledged that the same kind of contact would be possible if the applicant were living in Fiji, but said it would be different in the sense that Mr Lesuma would not know what was going on in his son’s life.

42.     Although Mr Lesuma had not visited Fiji for a long time, he thinks there is a chance that the applicant could receive drug rehabilitation treatment in that country.

43.     The applicant tendered a statement dated 16 August 2007 (Exhibit A6) from Reverend Jone M Koro, senior pastor at the Lakemba Christian Fellowship.  Mr Koro said he was aware of the applicant’s serious problems and the situation into which he has put himself.  He believes, however, that nothing is impossible and that the applicant could be helped if given counselling, guidance and spiritual teaching.  He does not think that anyone is too far gone to be brought back to live a normal life in society and has witnessed many apparently hopeless cases that have changed for the better.

44.     A letter from Mr Luke Bradley, operations manager of CR Security Group at Penrith dated 17 August 2007 (Exhibit A7) was also taken into evidence.  Mr Bradley stated that the applicant had been employed by his company in 2000 on a casual basis.  During that time he had always been honest and reliable and had carried out his duties in a professional manner as required.  He was a fit and proper person to be employed within the industry.  In making that statement, Mr Bradley used the past tense.

Mental health reports

45.     There is no pre-release probation service report for the applicant, presumably because none of his sentences exceeded three years.  Exhibit R1, however, comprises a number of mental health reports prepared by clinical nurse consultants.

46.     One such report, dated 8 June 2005, expresses the view that the applicant was suffering from drug-induced psychosis and from the effects of polysubstance abuse.  A similar view is expressed in a report from the Nepean hospital psychiatric unit dated 8 June 2005, the author of which concluded that the applicant was not exhibiting any signs of mental illness but might be showing symptoms of drug-induced psychosis which had responded to treatment with anti-psychotic medication.

47.     A Justice Health report dated 7 December 2006, prepared for sentencing purposes, noted that before incarceration the applicant used to smoke marijuana regularly and engaged in binge drinking, as well as occasionally smoking ice.  The clinical nurse consultant noted that Dr Gordon Elliot had diagnosed chronic schizophrenia and said that he required ongoing treatment with anti-psychotic medication and monitoring.

48.     In a Justice Health report dated 18 January 2007, Mr Colman O’Driscoll, a clinical nurse consultant, noted that the applicant had said he started smoking cannabis at the age of 14, but later said his first experience with it was at the age of five.  At 14 he was smoking one or two joints every day and continued to use it.  He had first used amphetamines, ingesting the drug, in 2004 and used it every day for about a year because they were too expensive.  During that time, he had also used cocaine and heroin, but also discontinued use of those substances because of their high cost.  He had also used cocaine every day for a year and had injected heroin daily for a year also.  He also reported a binge-drinking pattern of alcohol abuse.

49.     Mr O’Driscoll expressed the view that the applicant’s chronic schizophrenia had been exacerbated by his significant history of drug abuse.  He was currently taking the anti-psychotic medication seroquel, which had brought substantial improvements in his symptomology.  He did not present an imminent risk of harm to himself or others.

50.     A report dated 13 February 2007 by Ms Olive Plunkett expressed similar views and concluded that the applicant did not currently require hospitalisation.

Application of the Law and Findings of Fact

51. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and (7), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

…

The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

…

52.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).

53. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

54. In this case the applicant fails the character test because of his substantial criminal record within the meaning of s 501(6)(a) and (7) of the Act. He has twice been sentenced to terms of imprisonment of 12 months or more, and has in fact accumulated custodial sentences totalling over 10 and a half years. There are no mitigating circumstances, and on the contrary the record is aggravated by the presence of offences committed while on bail.

55. I must therefore consider whether to exercise my discretion under s 501(2) to decide, nevertheless, whether not 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:

…

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.

…

56.     Paragraph 2.3 sets out the primary considerations:

…

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.

…

Paragraph 2.4 explains:

…

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.

…

57.     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.

58.     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 similar offence”.

Protection of the Australian Community

59.     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 has twice been convicted of affray and also of common assault, assaulting a police officer in the execution of duty and assault occasioning actual bodily harm.  He has also been convicted of robbery in company.  His criminal record can only be viewed as very serious.

60.     The next issue for the tribunal to consider is the risk of recidivism.  The applicant has offended repeatedly since 2001, his most recent conviction being imposed in February 2007.  As Judge Dodd noted when sentencing the applicant on 28 May 2003, the applicant's commission of offences while on bail for other criminal charges was an aggravating feature of his conduct (G p56).  His Honour also commented that “it must be said therefore that your behaviour has not in general terms improved since the commission of these [his earlier] offences” (G p57).  A pre-sentence report had noted that the applicant had not attended community or custodial programs for drug and alcohol rehabilitation, despite earlier agreeing to do so when sentenced for other offences in the Local Court.

61.     Although the applicant states that he now wishes to undertake a rehabilitation program, there is no evidence of any rehabilitation to date, and in fact he has failed to take advantage of the opportunities for rehabilitation repeatedly offered to him.  He asks for a second chance, but he has been given many chances in the past, only to let them slip by.  His long-suffering father has done everything he can to help him to return to the right path, but has had to face the fact that there is only so much that he can do for a grown man.  Mr Lesuma Snr submitted that it was necessary to consider the applicant's mental condition at the time of the offences.  He had not been in the right state of mind to make use of the rehabilitation opportunities offered to him.  Now he could be treated and would be able to turn his life around.  When he first came to Australia he had contributed positively to the community but had drifted into crime as a result of using drugs.

62.     I have no doubt that Mr Lesuma Snr genuinely entertains those positive hopes for his son, but the record, including his relapse after making progress through the Lakemba church rehabilitation program, indicates that there is insufficient basis for those hopes.  The same must be said of Mr Koro’s aspirations for the applicant.

63.     The applicant’s history thus leads to the conclusion that there is a significant risk of recidivism in this case.

64.     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 is perhaps better 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.

65.     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.

66.     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”.

67.     To set aside the decision under review in the case of an unrehabilitated offender with such a serious record during his eight years in Australia would in my view send entirely the wrong message to other non-citizens contemplating criminal behaviour.

Expectations of the Australian Community

68.     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.

…

69.     A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11^th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5^th edn. Oxford 1998, 552).  That principle is implicitly confirmed by international human rights treaties.  For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4).  Consistently with these principles, it has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).

70.     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).

71.     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 can be imposed on them (at p658).

72.     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]).

73.     The applicant was an adult when he arrived in Australia and has been here for about eight years.  He has accumulated a serious criminal record with persistent offending over time, and including criminal activity while on bail for charges relating to other offences.  His convictions for assaulting police and escaping police custody also show disregard for Australian law.

74.     Mr Lesuma Snr submitted that the community can be generous and forgiving, and would want to see someone in the applicant’s position turn his life around and contribute to society once again.  While that may be true in a general sense, the present case concerns an applicant who shows no signs of rehabilitation and has thrown away the opportunities that the courts and other institutions have extended to him.  His father has done his best to help the applicant, but it is not easy for a parent to control the conduct of an adult child and his efforts have had little success.  The community would be likely to take the view that there is a limit to how far further chances can be offered to a repeat offender, and the applicant has crossed it.  Community expectations would clearly favour visa cancellation in this case.

The Best Interests of the Child

75.     The third primary consideration is the best interests of the child.  There is no child whose interests need to be considered under this heading.

Other considerations

76.     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.

77.     The applicant is not married to an Australian citizen or permanent resident and is not in a de facto relationship.  His father and siblings live in Australia, and would suffer some emotional hardship if the applicant’s visa were cancelled, but they are not financially dependent on him.  He has no business or other ties in Australia, and indeed a pre-sentence report identified “difficulty integrating into Australian life” as part of the origin of his criminal conduct (G p57).

78.     The applicant's mother, a paternal uncle and some cousins live in Fiji, as do a number of uncles on his mother’s side, although the latter group might not be a good influence.  The applicant and his father concede that he would be able to obtain some help and support from his Fiji relatives, although not as much as his father would like.  His father would also endeavour to establish him in Fiji, though he would prefer to be able to do that in Australia.

79.     While his father has misgivings about the availability of institution or mental care in Fiji, the reports indicate that he is not in need of in-patient treatment.  There is no evidence to suggest that he would be unable to obtain anti-psychotic medication in Fiji.

80.     There is little if any evidence of rehabilitation or recent good conduct.

81.     The primary considerations of community protection and expectations outweigh the other considerations in this case.  The decision under review is affirmed.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ...................[sgd].......................................................
               R. Wallace, Associate

Date/s of Hearing:  23 August 2007
Date of Decision:  4 September 2007
Solicitor for the Applicant:                  Unrepresented
Solicitor for the Respondent:             Mr Scott Maloney, DLA Phillips Fox