Letoga and Minister for Immigration and Citizenship

[2011] AATA 308

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 308

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0823

GENERAL ADMINISTRATIVE DIVISION		)
Re		Vena George Letoga

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date10 May 2011

PlaceSydney

Decision

The Tribunal sets aside the decision under review and substitutes a decision that Mr Letoga’s visa is not to be cancelled.

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

Senior Member A K Britton

CATCHWORDS

MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – favours – setting aside Minister’s decision to cancel visa.

Migration Act 1958 (Cth) — ss 499, 501, 501(6), 501(7)

Direction [no. 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Senior Member A K Britton           

1.      Mr Vena Letoga has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa.

2.      Mr Letoga is 24 years of age. He was born in, and is a citizen of, New Zealand. He migrated to Australia in January 2008. During his time in Australia, Mr Letoga has been convicted of a number of offences and has recently completed a 12 month custodial sentence. He is currently in Villawood Immigration Detention Centre in Sydney awaiting the outcome of these proceedings.

Power to cancel Mr Letoga’s visa

3. The Minister, or the Tribunal acting as substitute decision-maker, may cancel a visa that has been granted to a person if the person has not satisfied them that they pass the “character test”: s 501 of the Migration Act 1958 (Cth) (“the Act”). Mr Letoga does not pass the character test because he has a “substantial criminal record” on account of being sentenced to a term of imprisonment of 12 months or more: ss 501(6) and 501(7). Accordingly, the power to cancel Mr Letoga’s visa can be exercised.

Factors relevant to exercising power to cancel Mr Letoga’s visa

4. In deciding whether to exercise the discretionary power to cancel Mr Letoga’s visa, I must have regard to “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”), issued by the Minister under s 499 of the Act.

5.      The Direction lists a number of “primary” and “other” considerations that must be taken into account, and instructs that “other considerations” — namely those listed at para 11 — should generally be given less weight than primary considerations: sub-para 11(2).

6.      The primary considerations are set out in sub-para 10(1) of the Direction:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Background

7.      Mr Letoga was educated in New Zealand and left school at age 17. According to his sister, Ms Siaulaiga (Ina) Letoga, who gave evidence in these proceedings, he did well at school.

8.      After leaving school, Mr Letoga worked in a factory where his father was employed. He left to find alternative employment after 12 months but was unsuccessful.  He migrated to Australia with his sister, Ina Letoga when aged 21, on his account, to enhance his employment opportunities.  Until incarcerated in March 2010, he lived with his aunt, uncle and sister in Blacktown. 

9.      When released on parole 12 months later, he was immediately placed in Villawood Detention Centre where he currently resides.  He plans to return to live with the aunt and uncle if he is permitted to remain in Australia.  They have indicated that he is welcome to return.

Primary considerations

(a) Protection of the Australian Community

10.     The Direction instructs that due consideration be given to the Government’s objectives as set out in para 5 of the Direction (Preamble):

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)       In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)       The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

11.     The Direction identifies two factors relevant to assessing the risk of harm to the community of the person’s continued stay in Australia: (i) the seriousness and nature of the relevant conduct; and (ii), the risk that the conduct may be repeated: para 10.1.2.

(i) Seriousness and nature of the conduct

12.     The Direction sets out a number of factors to be taken into account in assessing the seriousness and nature of the offending conduct and states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

13.     Subparagraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:

(i)        the number and nature of offences;

(ii)       the period between offences; and

(iii)      the time elapsed since the most recent offence.

14.     Factors to be considered under para 10.1.1(4) include any judicial comments made about the person, parole assessments, and any relevant mitigating factors.

Criminal History  

15.Mr Letoga denies any criminal offending before coming to Australia. While in Australia he has been convicted of the following offences:

Date of offence	Offence	Penalty
27 January 2009	Assault officer in execution of duty	100 hrs community service
Resist officer in execution of duty	100 hrs community service
Destroy or damage property	100 hrs community service
Common assault (x 2)	18 months good behaviour bond Resentenced following breach of bond:  18 months custodial sentence (12 months non-parole)
Enter vehicle with consent of owner	Fine $200
Enter inclosed land without consent	No penalty imposed
1 August 2009	Have custody of an offensive implement in a public place	Fine $250
19 September 2009	Break enter and steal
	Break and enter
	Recruit child to carry out assist in carrying out criminal activity	6 months custodial sentence
17 October 2009	Larceny< $2000	6 months custodial sentence
4 March 2010	Shop lifting	12 months custodial sentence(9 months non-parole)

January 2009 offences

16.     The first offences for which Mr Letoga was convicted occurred in the early hours of 27 January 2009.  The police facts sheet tendered before the sentencing court stated that Mr Letoga had smashed the window of a motor vehicle parked in a residential street. When disturbed, he wielded a screw driver in a stabbing movement in the direction of an off-duty police officer.  The police were alerted and a chase ensued.  When finally caught, Mr Letoga kicked one of the arresting officers in the shins.  Mr Letoga was heavily intoxicated at the time of the incident.

17. The charges in relation to that incident came before the Blacktown Local Court on 18 September 2009. Mr Letoga was convicted of the offences of assault officer in execution of duty, resist officer in execution of duty, destroy or damage property, common assault (x 2); enter vehicle with consent of owner and enter inclosed land without consent. He was fined $200, directed to perform 100 hours community service and, in relation to the common assault conviction, placed on a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for 18 months and submit to the supervision of the NSW Probation and Parole Service.

1 August 2009 offence

18.     While still on bail for the January 2009 offences, Mr Letoga was charged under the Summary Offences Act 1988 (NSW) for the offence of “having an offensive implement”. The police facts sheet states that the arrest occurred after Mr Letoga was observed at about 8.30pm near Blacktown station, an area, the police contended, notorious for crime. He was found to have an aluminium baseball bat hidden inside his tracksuit pants. He is recorded as having told police, “I just got [the baseball bat] from home and carry it around”.

19 September 2009 offences

19.     The day following his conviction for the January 2009 offences, Mr Letoga broke in to a kiosk at a local municipal pool and stole some iceblocks, in the company of a 13 year-old-boy.  The break-in occurred in the middle of the day.

17 October 2009 offence  

20.     Mr Letoga was arrested for stealing a wallet and mobile phone from the handbag of a commuter on Blacktown railway station.  When confronted he fled and was later caught by police.

4 March 2010 offence  

21.     Mr Letoga was arrested for shoplifting a dozen meat pies from a supermarket. Bail was revoked. He was subsequently convicted.

(ii) Risk that conduct may be repeated

22.     Mr Letoga’s previous general conduct and total criminal history are to be considered “highly relevant” when assessing the risk he poses of reoffending: para 10.1.2(1). The following factors are to be considered particularly relevant to that assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of reoffending;

(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

History of recent convictions  

23.     In the 14 months prior to his incarceration, Mr Letoga committed offences on five separate occasions, most recently on the day he was incarcerated.

Evidence of Rehabilitation  

24.     Mr Letoga stated in these proceedings that he believed that alcohol use was the main reason for his offending conduct. He apparently commenced drinking when aged 18.  After arriving in Australia he began to binge drink a few times a week. On his account, he was intoxicated on all but two occasions when he was arrested. He claims not to have drunk since having been incarcerated.  

25.     In late 2009 Mr Letoga was admitted into the MERIT (Magistrates Early Referral Into Treatment) program, apparently as a condition of being granted bail in relation to the October 2009 offences. A pre-sentence report prepared in October 2010 recorded that while Mr Letoga had attended all scheduled appointments under that program he “engaged only at a minimal level” and voluntarily withdrew after participating in 12 out of a possible 14 weeks’ program. In these proceedings Mr Letoga testified that he had found the drug and alcohol counselling he had received through MERIT useful and it had assisted him to stop drinking. He could not explain why he prematurely withdrew from the course and stated that the course organiser had told him he could elect to withdraw. 

26.     Mr Letoga attended one meeting of Alcohol and Narcotics Anonymous while incarcerated. He stated that he did not attend any other meetings because he was moved to another facility but conceded that after the transfer he did not enquire about the availability of any suitable program.

27.     Mr Letoga testified that he intended to undertake further alcohol rehabilitation.  He said that it was his understanding that he remained eligible to undertake the drug and alcohol program undertaken under the MERIT program.  At the time of the hearing he had made no enquiries about the availability of any suitable courses but said that he intended to do so if he was able to stay in Australia.

28.     Mr Letoga came to Australia with his sister, Ms Ina Letoga. She has been in employment since shortly arriving in Australia.  She described her brother as a “loving, caring and kind-hearted person”. She stated that if he were permitted to remain in Australia she would use her best endeavours to ensure that he undertook further rehabilitation. She said that she and her aunt and uncle recognised this to be essential if the progress he had made in gaol was to be maintained.  She said she now realised that he required a greater level of support and monitoring than had been provided prior to his incarceration. She said she believed it would be useful if he were also to undertake some form of counselling and that she would organise this. She also stated that she understood that her aunt and uncle, who are both in employment, were prepared to take an active role in assisting her brother.

29.     A report prepared by the NSW Probation and Parole Service in January 2011 reveals that during his period of incarceration, Mr Letoga had: not been the subject of any adverse reports; tested negative for drug use on all occasions; successfully completed a number of educational courses; participated in fund raising activities for the Prostrate Cancer Foundation and, made a personal donation to the Foundation.  According to Mr Letoga, while in gaol he completed a number of courses including Year 10 subjects (NSW School Certificate) and a TAFE course in motor mechanics.

30.     Mr Letoga stated that “being in prison opened my eyes and …I have moved on”. He expressed deep regret for his actions. His sister, testified that based on her observations of her brother during her regular visits while he was in custody, she believed as claimed, that he was deeply remorseful. She said that she would not be supporting his application to the tribunal had she thought otherwise.

31.     According to Mr Letoga his offending conduct was the result, at least in part, of his association in Australia with some old friends who had become “anti-social”. He claims that he was greatly influenced by them and intends not to associate with them again.

Compliance with judicial orders           

32.     Mr Letoga has a poor record of complying with judicial orders.  The day after being placed on a good behaviour bond in September 2009, he broke in to a local pool. A month later while still subject to a bond he was charged with and later convicted of, stealing from a commuter’s handbag. Six months later while on bail he was arrested for shop lifting. 

33.     A report prepared by Mr Letoga’s probation and parole officer in December 2009, described his response to supervision of the Service as “poor” and recommended that a “more suitable sentence” be imposed. The officer noted that he had failed, as directed, to report to the Service on four out of ten occasions.  However a pre-sentence report prepared in October 2010 recorded that following the recommendation that his bond be revoked, Mr Letoga’s response to supervision improved. When admitted to custody in March 2010 he had completed about 80 of his 100 hours of community service. 

Future employment

34.     Mr Letoga claimed that he worked as a packer, for two different employers, for a total of about eight of the 26 months he spent in Australia prior to incarceration. He claimed that he had attempted to find further employment without success.  

35.     Mr Letoga testified that it was his intention to diligently look for employment if he remained in Australia. He stated that he believed he would be assisted in that endeavour because of the educational qualifications he had obtained while in prison. Ms Letoga testified that she was committed to playing an active role in helping her brother find employment and that he had told her that he was committed to pursuing further studies.

Findings and conclusions

A. Protection of the Australian Community

36.     In assessing the primary consideration of the protection of the Australian community, consideration must be given to both the seriousness and nature of Mr Letoga’s offending conduct and the risk of recidivism.

37.     Apart from the common assault, none of the offences for which Mr Letoga was convicted are listed in the Direction as examples of offences considered “serious”: para 10.1.1(2). None involved violence directed against “vulnerable persons”: para 10.1.1(1). Most involved offences against property. Those that involved offences against the person did not result in the victim sustaining any serious injury. All were apparently opportunistic.

38.     While taken individually, none of the offences for which Mr Letoga has been convicted could be described as especially serious, nonetheless they cannot be viewed in isolation. On all but one occasion he committed the offences while on bail and/or on a good behaviour bond.  It would appear from the remarks made by magistrate on sentencing that the relatively heavy custodial sentence  — 18 months (12 months non-parole) and concurrent sentences of lesser and varying lengths — had been imposed largely because of the frequency of Mr Letoga’s offending together with his failure to comply with his obligations to the court, rather than because of the nature of the offences (see R v George Letoga (NSW Local Court, Magistrate Price, 18 June 2010).

39.     While the conduct, taken overall, could not be considered as the most serious, nonetheless it cannot be disregarded. The objective of the protection of the Australian community demands that the community be protected from the risk of harm from criminal conduct, including conduct that falls towards the low end of the scale.  It is therefore necessary to assess the risk that the conduct might be repeated.

40.     While prior to incarceration Mr Letoga apparently had little regard for his obligations to the court and the Australian community there is some evidence to suggest that Mr Letoga has now matured and recognises the error of his ways. First, he has expressed remorse for his conduct. His sister, who while plainly not independent nonetheless impressed me as a truthful and insightful witness, believes her brother to be genuinely contrite and to have undergone real change during his time in prison. Second, his conduct while in prison has been exemplary. He has taken advantage of educational opportunities available and diligently applied himself to his studies. There is no evidence to suggest that he has used drugs or alcohol, or engaged in anti-social activities while in prison. Third, I accept that Mr Letoga now recognises that alcohol has been a problem and that he must seek further assistance if the progress made to date is to be maintained.  Importantly, his sister is committed to taking an active role to ensure that this occurs. 

41.     If permitted to remain in Australia, Mr Letoga will have the benefit of a loving and supportive family. His sister candidly acknowledges that her brother needs a greater level of support and monitoring than had been provided to him in the past. I accept that she will use her best endeavours to assist her brother stay “on track” and look for employment and undertake further counselling.  I also accept that she will be assisted by her aunt and uncle.

42.     Mr Letoga’s offences are characteristic of the type of relatively petty offences committed by immature and disaffected youth. His crimes were committed relatively spontaneously and lacked deliberation and judgement. He is no criminal mastermind and nor he is fundamentally dangerous or depraved.

43.     It is common knowledge that some young men tend to get into trouble in their youth for anti-social behaviour in their late teens and early adult years but most develop into law abiding people in their mid–twenties because they mature. If, as seems likely, Mr Letoga follows this typical trajectory, and provided that he receives the support of his family, the risk he poses to the Australian community in my opinion is not high.

44.     Mr Letoga has experienced gaol and now the threat of deportation. He is intelligent enough to grasp the fact that any further serious misconduct will almost inevitably lead to further gaol time followed by deportation. With his developing maturity, these experiences will also assist in reducing the likelihood of recidivism and therefore the risk to the Australian community.

45.     While not possible to exclude the possibility that Mr Letoga will go on to re-offend, the risk that he will do so, in my opinion, is low.  In my view he does not pose an unacceptable risk of harm to the Australian community.

B. Age when Mr Letoga began living in Australia

46.     Mr Letoga, was 21 years of age when he started living in Australia. Therefore this factor does not weigh in his favour.

C. Length of time resident in Australia

47.     Under the Direction, “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: para 10.3(1).

48.     Mr Letoga has resided in Australia for just over three years. His first offence was committed about a year after he arrived in Australia.  Therefore, this factor does not weigh in Mr Letoga’s favour.

D. International obligations

49.     There is no evidence of any child in Australia who might be affected by the cancellation of Mr Letoga’s visa.It is agreed that that the cancellation of Mr Letoga's visa would not be contrary to Australia's non-refoulement obligations or any other international obligation. Accordingly para 10.4 of the Direction has no application. 

Other considerations

50.     As noted, the Direction specifies a number of other considerations that must be taken into account, if relevant. They should generally be given less weight than the primary considerations: para 11(2).

51.     Family ties: Mr Letoga has some family in Australia but most of his family live in New Zealand. If his visa is cancelled he plans to live with his parents in Auckland and, if not, his aunt, uncle and sister in Blacktown, Sydney.

52.     The evidence indicates that he can rely on a loving family for support in both NZ and Australia.

53.     Age and health: Mr Letoga is young and apparently in good health.

54.     Links to New Zealand: Mr Letoga has been away from NZ for just over three years, his links therefore to that country are likely to be strong.

55.     Hardship likely to be experienced by Mr Letoga: According to Mr Letoga he migrated to Australia to enhance his employment prospects.

56.     Hardship likely to be experienced by Mr Letoga’s family members resident in Australia: While Mr Letoga will no doubt be missed by his sister Helen his aunt and uncle it is unlikely that they would suffer any hardship as a result and nor is this suggested.

57.     Level of education: As noted Mr Letoga completed Year 11 in New Zealand. While incarcerated he completed a number of courses.  

58.     Notification of possible deportation: Mr Letoga was first notified that his criminal conduct might result in his visa being revoked on 22 October 2010. He was in custody at the time.

59.     Summary: In my view none of the factors listed in para 11 of the direction weigh in Mr Letoga’s favour. There is no evidence and nor is it suggested that Mr Letoga or any member of his family would suffer significant hardship if his visa were to be cancelled.

Decision

60.     In exercising the discretionary power to cancel Mr Letoga’s visa, I must take into account the four primary considerations and any “other” relevant factor and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.

61.     In summary, the fundamental purpose of this provision is to exclude from Australia persons whose conduct, prima facie, demonstrates them to have been or to continue to be a serious risk to the Australian community.  It also takes into account any serious hardship that would ensue to the person in question if he or she is excluded from Australia.  Both categories of considerations must be weighed and considered together.  In my view, Mr Letoga cannot argue that deportation would cause hardship so serious that it would be oppressive.  Indeed, any hardship he might suffer is comparatively minor.

62.     The difficulty this application poses is the question of whether Mr Letoga has been, or continues to be, a serious risk to the Australian community. There is no doubt that his past behaviour demonstrates an anti-social tendency, especially when he is affected by alcohol.  On the other hand, as stated above, I consider that his behaviour overall could be categorised as “petty crime” and that his progress toward maturity combined with family support and the deterrent effect of a spell in gaol has reduced the risk to the Australian community to a low level.  I therefore think that the discretionary power to cancel Mr Letoga’s visa should not be exercised in this case.

63.     For these reasons, I have decided not to cancel Mr Letoga’s visa and to set aside the decision under review.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .............................[sgd]...............................
  Associate to Senior Member Britton

Date of Hearing  2 May 2011 
Date of Decision  10 May 2011
Counsel for the Applicant         Mr David Burwood     
Solicitor for the Respondent     Ms Michelle Stone, DLA Piper