Likumbo Makasa and Minister for Immigration and Border Protection
[2013] AATA 790
•8 November 2013
[2013] AATA 790
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3061
Re
Likumbo Makasa
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 8 November 2013 Place Sydney The Tribunal sets aside the Minister’s decision and substitutes a decision that the Applicant’s visa should not be cancelled.
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The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 – discretion – whether conduct in respect of which there has been an acquittal can be considered by Tribunal – role of the Tribunal – whether Tribunal can or should make finding in respect of such conduct - protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – decision under review set aside and substituted with a decision that the applicant's visa should not be cancelled.
LEGISLATION
Migration Act 1958 (Cth); ss 499, 501
Crimes Act 1900 (NSW); s 61J, 66C(3)
Administrative Appeals Tribunal Act 1975 (Cth); ss 2A, 25
CASES
Makasa and Minister for Immigration and Citizenship [2011] AATA 719
Minister for Immigration and Citizenship v Makasa [2012] FCAFC 166
R v Carroll (2002) 213 CLR 635
Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433
Briginshaw v Briginshaw (1938) 60 CLR 336R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
BACKGROUND
Mr Makasa came to Australia on a student visa in November 2001. He is a 28 year old Zambian citizen. In October 2004 his mother was granted permanent residence under a spouse visa and Mr Makasa was also granted a permanent residence visa as one of her dependants. On 5 July 2011 the Minister for Immigration and Citizenship (as he was then known) cancelled Mr Makasa’s visa pursuant to s 501(2) of the Migration Act 1958 (the Migration Act). He was notified of the decision on 27 July 2011 and he commenced review proceedings in this Tribunal on 1 August 2011. On 18 October 2011 the Tribunal affirmed the Minister’s decision (Makasa and Minister for Immigration and Citizenship [2011] AATA 719).
That decision was set aside by the Federal Court in April 2012 and remitted to the Tribunal for consideration in accordance with the decision of the Court.
As noted by the earlier Tribunal, the Minister’s visa cancellation power arose in consequence of the conviction of Mr Makasa in August 2009 and concurrent two year custodial sentences for three offences of sexual intercourse with a 15 year old girl. The convictions relate to events that occurred on 31 August 2006 in a house that Mr Makasa shared with persons accused of sexually related offences. The events that occurred in the rented house on the evenings of 30 August and 31 August 2006 resulted in four trials (three of which were aborted for various reasons), and two judgements of the NSW Court of Criminal Appeal.
Mr Makasa was charged with eight principal offences and eight alternative offences arising out of events that the victim complained of. Three of the principal offences were of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW) (the Crimes Act). Joint charges were laid against Mr Makasa and two other men involving allegations of joint enterprise to have non-consensual sexual intercourse with the girl on the evening of 30 August 2006. None of the three jointly charged defendants were specified as the actual perpetrator, because the complainant was unable to identify any specific person as the actual perpetrator of the intercourse on the evening of 30 August. The presence of persons, including Mr Makasa, in the room and alleged knowledge of the circumstances in which the intercourse occurred were relied on as proving a joint enterprise. A conviction for aggravated sexual assault attracts a liability for imprisonment of a period of 20 years, which is six years more than the sentence which applies to a conviction for non-aggravated sexual assault.
Mr Makasa was also charged with five other principal offences of aggravated sexual assault involving non-consensual intercourse on the following day (being 31 August 2006).
The eight alternative offences with which Mr Makasa was charged relate to the same alleged events as the principal charges but they are not sexual assault charges, nor did the charges involve any element of aggravation. They were charges of sexual intercourse with a person aged between 14 and 16 under s 66C(3) of the Crimes Act which are punishable by a term of imprisonment of up to 10 years.
The girl’s lack of consent to intercourse was an essential ingredient of the eight principal charges of sexual assault. Her consent was irrelevant to the eight alternative charges of unlawful sexual intercourse with a person under 16 years.
In August 2009, after a fourth and three month long jury trial, Mr Makasa, and each of his co-accused, was found guilty of aggravated sexual assault involving the first charge of intercourse on the evening of 30 August 2006. All three co-accused were acquitted on all other charges of intercourse on the evening of 30 August 2006.
In summary, the result of the jury verdicts in August 2009 relating to the 16 charges brought against Mr Makasa is as follows: he was found guilty on one charge of aggravated sexual assault relating to the evening of 30 August 2006 and on three of the alternative charges of sexual intercourse on 31 August 2006. There were not guilty verdicts on the other charges.
Mr Makasa was sentenced in October 2009 to a six year term of imprisonment for his conviction of aggravated sexual assault. The term of imprisonment was back-dated to commence on 4 March 2008 and expire on 3 March 2014. There was a three year non-parole period and he was sentenced to concurrent two years imprisonment for each of the three sexual intercourse convictions arising out of events on 31 August 2006, commencing on 3 September 2010 and expiring on 2 September 2012.
Mr Makasa did not appeal against his three convictions on the sexual intercourse charges relating to 31 August 2006. However, he did challenge his conviction for aggravated sexual assault in respect of the events of 30 August 2006.
That conviction was set aside. The majority judgement in the Court of Criminal Appeal accepted that the evidence was not sufficient to establish that the mere presence of three men in the room at the time was capable of satisfying a jury that there was any joint enterprise to effect an act of intercourse. In substance the majority decision of the Court of Criminal Appeal decided that there was no evidence of events or communications prior to the commission of the act of sexual intercourse on 30 August which was capable of proving that the appellant participated in a joint enterprise wherein one or more of them had unlawful sexual intercourse with the complainant. The Crown had accepted that there was no evidence capable of identifying which of the appellants had intercourse with the complainant on that evening, and there was no evidence at the trial that any of the appellants said or did anything when this intercourse was taking place, and therefore proof of their guilt rested on the nature and sufficiency of inferences to be drawn from the fact of their presence. The majority considered that the evidence was not capable of satisfying the jury beyond reasonable doubt that any of the appellants “encouraged” the person who had sexual intercourse with the complainant in the performance of that act. Accordingly, the Court of Criminal Appeal directed a verdict of acquittal on the aggravated sexual assault charge based on the events of 30 August. It also varied the sentences of Mr Makasa for his sexual intercourse convictions. He was released on the day of the Court of Criminal Appeal’s 8 October 2010 judgement. Subsequently, he was taken into immigration detention.
In the Court of Criminal Appeal there was detailed dissenting judgment by Justice McCallum, which disagreed with the majority as to the inferences which could be drawn from the evidence, specifically in relation to joint criminal enterprise charges. Her Honour considered it was open to the jury to convict.
REMITTAL
On 18 October 2011 this Tribunal, differently constituted, affirmed a decision of the Minister to cancel the visa of Mr Makasa. On 22 November 2012 the Full Federal Court, (Minister for Immigration and Citizenship v Makasa [2012] FCAFC 166) dismissed an appeal from a single judge of that Court who granted an order quashing the decision of the Tribunal and the Full Court granted an order for a writ of mandamus requiring reconsideration by the Tribunal of Mr Makasa’s application according to law. The primary ground for the remittal order was that the Court considered that the Tribunal had erred in making an impressionistic appraisal of what might reasonably have been apprehended to have occurred, rather than identifying specific proven past conduct and it had therefore failed to address the correct question.
ISSUE ON REMITTAL
The issue for determination by this Tribunal on the remittal is whether on the evidence before the present Tribunal, the decision of the Minister to cancel the visa of Mr Makasa is the correct or preferable decision.
The determination of this question requires consideration of the provisions of s 501 of the Migration Act, having regard to Direction No. 55 made pursuant to s 499. Section 499 empowers the Minister to give directions as to the matters to be considered in the exercise of power under s 501. Direction No. 55 embodies the relevant direction in the present case.
Under s 501(2) the Minister has power to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and does not satisfy the Minister that the person satisfies the character test. There is no dispute in the present case that Mr Makasa does not pass the character test because he has a substantial criminal record in that he has been sentenced to a term of imprisonment of 12 months or more: see s 501(7) of the Migration Act.
Accordingly, the question is whether the Tribunal, having regard to the matters set out in Direction No. 55, should exercise the discretion to cancel the visa.
THRESHOLD QUESTION – CONDUCT THE SUBJECT OF ACQUITAL
Before considering the application of Direction No. 55 in this case, it is necessary to determine a submission by the Minister that notwithstanding the acquittal of Mr Makasa on appeal of the charges concerning the joint criminal enterprise based on the events of 30 August 2006, this Tribunal should now make findings, on the civil standard of balance of probabilities, that the Applicant had non-consensual sexual intercourse with the complainant. Alternatively, the Tribunal is asked to find whether the Applicant stood by and failed to intervene when to his knowledge one of his co-accused had non-consensual sexual intercourse with the complainant on the evening of 30 August 2006. The Minister now seeks to establish before this Tribunal that, on the civil standard, Mr Makasa engaged in the alleged criminal conduct of which he was acquitted by the Court of Criminal Appeal.
Counsel for Mr Makasa contends that having regard to the acquittal the Tribunal should not, and indeed cannot, have regard to conduct in respect of which he has been acquitted. I do not accept this broad general submission.
The acquittal in this case does not amount to a finding that Mr Makasa was innocent of the charges. It establishes that the Crown could not prove all the elements of the offence beyond reasonable doubt: see Gleeson CJ and Hayne J in R v Carroll (2002) 213 CLR 635 at [31].
This Tribunal is bound by the decision of the Full Federal Court in Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433 at [11] where the majority said that:
Failure to prove a criminal charge beyond reasonable doubt does not immunise conduct from consideration by the Minister in the exercise of a general discretion …
In other words the fact that on appeal it was decided that Mr Makasa should not have been convicted of the joint criminal enterprise charge did not put his conduct beyond consideration when exercising the discretion under s 501 of the Migration Act.
I note that para 9.1.1 of the Direction requires the Tribunal to take into account the nature and seriousness of a person’s criminal offending or other conduct to date. This mandate is clear and far reaching. It requires the Tribunal to take into account all proven conduct of the Applicant to the date of the decision. The relevant standard of proof under s 501 is the civil standard. In determining that such conduct has been made out, having regard to the serious nature of the allegations in the present case and the consequence that flows from such a finding, it is appropriate to have regard to the considerations set out in Briginshaw v Briginshaw (1938) 60 CLR 336.
CONDUCT OF MR MAKASA ON 30 AUGUST 2006
On the evidence before me, I am not satisfied there is sufficient proof on the civil standard to substantiate a finding the Applicant had non-consensual sexual intercourse with the complainant, or that he stood by and failed to intervene when to his knowledge one of his friends had non-consensual sexual intercourse with the complainant on the evening of 30 August 2006. Nor am I satisfied that he engaged in any joint criminal enterprise on that date according to the civil standard.
I note the conclusion of the majority in the Court of Criminal Appeal that there was no evidence capable of satisfying the jury beyond reasonable doubt that the Applicant was aware that sexual intercourse with the complainant occurred when she was asleep: see R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228. I do not consider that any such awareness has been established as a consequence of the evidence and detailed submissions before me, applying the civil standard of proof. There is an absence of any satisfactory evidence to substantiate an inference that the accused had any awareness of sexual intercourse taking place with the complainant on 30 August without her consent. This Tribunal is now asked to draw inferences from the evidence of the co-accused, and telephone calls and other evidence of inconsistencies and evasiveness in the Applicant’s evidence which is said to diminish the Applicant’s credibility, in an attempt to establish he was aware of the absence of intercourse without consent or that he engaged in such intercourse on 30 August. It is not open to make any reasonable inference to this effect. The complainant had been drinking heavily and was unable to identify any person having intercourse with her on the evening of 30 August. This fact was emphasised by the Court of Criminal Appeal.
The Minister has carried out an exhaustive analysis of the dissenting reasoning of McCallum J which is said to lend support to the reasonableness of such an inference. I do not accept this submission. While I have taken the reasoning of McCallum J into account, I prefer the reasoning of the majority.
The Minister also relies on the lack of credibility of Mr Makasa in giving his evidence generally, and to the manner in which it was given and its inconsistencies. There is some force in these submissions. However, notwithstanding the problems with the evidence of Mr Makasa, I am not satisfied that these criticisms are sufficient to make out any case that there was either non-consensual sexual intercourse with the complainant or that Mr Makasa was aware that non-consensual sexual intercourse was taking place with someone else on the evening of 30 August.
The Minister relies heavily on other material and transcripts of evidence of other co-accused to support such inference on the civil standard. This evidence relates to time of arrival at the rented premises and as to telephone calls on the evening of 30 August. In my opinion, the circumstance set out in the evidence to which I have been referred is not sufficient to prove the essential elements in the offence as to awareness of the actions by Mr Makasa as alleged.
It is significant that in the Court of Criminal Appeal judgement MacFarlane JA emphasised that the complainant was unable to identify the accused or any other person sitting on the bed or standing near the bed or sitting on the floor at the time. His Honour also noted that the room was dark and that Mr Makasa knew the complainant had been drinking heavily. There was no evidence as to what the other persons were doing at the time. It was a realistic possibility in his view that the other men in the room had no knowledge of intercourse taking place with the complainant without her consent.
In deciding whether the conduct alleged had taken place, I have not had the benefit of seeing any of the witnesses to the events of 30 August apart from Mr Makasa, therefore am unable to make any satisfactory evaluation as to the credibility of any of these witnesses. I have been taken to parts of the transcript of the three month trial, and to parts of other evidence in the hearing and the material used in the sentencing remarks. However, this evidence has been piecemeal and unsatisfactory in providing any reasonable basis for proving the conduct in respect of which acquittal had been ordered by the Court of Criminal Appeal.
Accordingly, I do not make any finding as sought on the civil standard that Mr Makasa had non-consensual sexual intercourse with the complainant on 30 August, or that he stood by and failed to intervene with knowledge that any other person in the room had non-consensual sexual intercourse with the complainant or that there was any joint criminal enterprise. As the Full Court pointed out in remitting this case apprehended conduct or suspicion cannot be relied on by the Tribunal.
CONDUCT SUBJECT OF ACQUITTAL – TRIBUNALS’ APPROACH
Before leaving the issue concerning the attempt by the Minister to prove on the civil standard the criminal misconduct of the Applicant on 30 August 2006 in respect of which he has been acquitted, I wish to make some remarks about the role of the Tribunal in relation to this type of matter and to note the submissions made by counsel for Mr Makasa as to the Tribunal’s approach in this case.
Counsel for Mr Makasa submits that even if the Tribunal had the jurisdiction or power to reconsider misconduct in respect of which an Applicant has been acquitted, it should not embark on such a hearing.
Counsel for Mr Makasa points out that the mandate of this Tribunal under s 2A of the AAT Act requires it to provide a mechanism of review that is fair, just, economical, informal and quick. To re-examine acquitted conduct exhaustively considered in a previous lengthy criminal trial satisfies none of these objectives.
It is contended that this Tribunal, which is empowered to review decisions of administrative decision makers and limit the questions of fact and evidence that it considers, is not an appropriate forum in which to hear charges of criminal misconduct and in effect to embark on or make findings which involve a reconsideration or rehearing of the evidence adduced during a three month criminal trial which resulted in the acquittal of Mr Makasa on appeal, in the course of which lengthy, reasoned judgments were given: see Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 25(4) and 25(5). It is not bound by the rules of evidence and must conduct its proceedings with expedition and as little formality as possible: see s 33(1).
This Tribunal is not constituted in such a way as to make it appropriate to rehear evidence from a criminal trial in circumstances where it is asked to apply different standards of proof when making findings in respect of grave misconduct. The consequences of a finding on a civil standard that the Applicant has been guilty of criminal conduct are serious in nature and entail adverse consequences, namely cancellation of his visa and deportation.
Counsel also submits that in order to make the findings contended for by the Minister it is necessary in substance to retry the criminal case by calling relevant witnesses, including the complainant, and making proper assessments as to credibility, relevance and weight of the evidence after hearing detailed submissions based on the evidence.
In the hearing before me there has been no recalling of any of the relevant witnesses who gave evidence at the criminal trial. There has been detailed cross examination of Mr Makasa. I have not been taken to the entirety of the evidence, exhibits, transcripts or submissions of the trial. The Minister has presented the Tribunal with a patchwork quilt of evidence selected from some parts of the criminal trial on which I am asked to make the finding that conduct of a serious criminal kind by the Applicant has occurred on 30 August 2006. I have been directed to some parts of the transcript of the three month trial and to some of the documents and submissions, as well as to the observations of the sentencing judge and the reasons given by the Court of Criminal Appeal, including the dissenting judgment.
There is much to be said for the submissions of the Applicant as to the unsatisfactory nature of embarking on a rehearing before this Tribunal, applying a different standard of proof, in respect of matters involving several co-accused after a lengthy trial. The function of this Tribunal is to review administrative decisions and to make the correct and preferable administrative decision. It is not to adjudicate on questions of criminal misconduct at the request of either the accused or the Crown which have already been the subject of lengthy hearing and detailed submissions as to fact and law.
It will be a rare case where such a course ought to be adopted before this Tribunal.
However, the Minister is entitled to prove relevant conduct of an applicant relating to the cancellation of a visa. I have therefore in this matter taken into account the evidence placed before me by the Minister and, for the reasons given earlier, I have found it to be insufficient to establish the elements which comprise the alleged misconduct on the evening of 30 August 2006 according to the civil standard.
DIRECTION NO. 55
Direction No. 55 provides guidelines for those matters which must be taken into account when considering whether to cancel a person’s visa. Under this Direction it is clear that the objective of the Act is to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, especially in relation to safety of the community’s more vulnerable members such as minors. The Direction is binding on all decision-makers including this Tribunal.
Part A of the Direction is concerned with the exercise of the discretion to cancel a via holders’ visa and outlines both the primary considerations and the other considerations which must be taken into account when exercising this discretion. The primary considerations should generally be given greater weight.
The four primary considerations are set out in para 9(1) of that Part as follows:
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The strength, duration and nature of the person’s ties to Australia;
c) The best interests of minor children in Australia;
d) Whether Australia has international non-refoulement obligations to the person.
The other considerations are set out in para 10(1) as follows:
10. Other considerations – visa holders
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b)Impact on Australian business interests;
c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)The extent of any impediments that the person 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:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
I now turn to consideration of the primary matters.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The first primary consideration is the protection of the Australian community from criminal or other serious conduct, particularly crimes of a violent and/or sexual nature.
When considering these matters, the Tribunal is required to give due consideration to the objectives, guidelines and principles outlined in the Preamble to Direction No. 55. The principles outlined in this section provide a framework for decision-makers and include the following:
6.3 Principles
(1) …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) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) 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.
(4) 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. ...
(5) …
(6) 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.
Informed by these principles, the Direction then states that in exercising their discretion a decision-maker “is required to determine whether the risk of future harm by a non-citizen is unacceptable”. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which the risk of any future harm should be tolerated by the Australian community.
Decisions makers are also required to give consideration to the extent, seriousness and nature of the relevant conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
In assessing the nature and serious of the person’s conduct, conduct involving violence or the threat of it, particularly against vulnerable persons such as minors, is especially abhorrent to the Australian community. This includes offences perpetrated against a child, particularly sexually based offences and aggravated assault. The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and regard must be had to the extent of the person’s criminal record, including the number and nature of offences; period between offences; and the time elapsed since the most recent offence.
With regard to the risk that the conduct may be repeated, the assessment of this risk is based on the person’s previous general conduct and total criminal history. In considering these matters, the Tribunal must take into account the conduct and harm that may be caused if the conduct were repeated and also whether it is so serious that any risk, repetition or recidivism is unacceptable. The greater the seriousness of the potential harm then the lesser the community’s tolerance for any risk of future harm.
Seriousness and Nature of the Conduct
As noted earlier, Mr Makasa has been convicted on three counts of intercourse with a minor aged from 14 to under 16 years. At the time of the offence, the victim was 15 years of age.
In November 2005 he pleaded guilty to three counts of common assault against his former partner, Ms F, for which he was sentenced to an 18 month good behaviour bond. He was also convicted for negligent driving without a licence in July 2006 while he was on this good behaviour bond. The bond was still in force as at 30 and 31 August 2006 when events the subject of the later criminal trial, resulting in the Applicants conviction on three counts of intercourse with a minor, occurred.
For reasons given earlier, I do not accept the Minister’s submission that Mr Makasa had any sexual intercourse with the complainant on 30 August or that he was aware of or engaged in an enterprise wherein any person had sexual intercourse with the complainant without her consent.
It is clear that the three principal convictions were for conduct, namely sexual intercourse with a 15 year old girl, which was serious, and which was against a vulnerable underage person. However, the sentence of two years with a non-parole period of one year indicates the crime was regarded by the sentencing judge as one of comparatively lesser seriousness and that it also took into account the fact that the offence was committed whilst Mr Makasa was on a good behaviour bond. For the 2005 convictions of common assault against his then partner, the sentence was relatively light as an 18 month good behaviour bond was imposed. It is true that an Apprehended Violence Order was made against him as a result of the common assault offences, and that there were three assaults over a period of a few days. Again, these were sexual offences involving violence. The conviction for negligent driving and driving without a licence was at a time when he was on a good behaviour bond as a result of the 2005 convictions for common assault against his former partner. This lends some support to the contention that he had no real appreciation of his need to comply with the law.
The Minister also relies on Mr Makasa’s lack of candour and evasiveness when giving evidence and making statements to the Courts and this Tribunal on both occasions he has appeared here in itself as amounting to serious bad conduct.
I have also taken into account evidence of Ms Ines Gagliardi as to the general impact of sexual assault on women and the victim impact statement of the complainant as to the effect of the offences on her life and as to the consequences of the assault on her psychological well-being in particular.
In his sentencing remarks Armitage JA on 26 October 2009 referred to the fact that the trial had taken place over a three month period. He accepted the submission of counsel for Mr Makasa that the earlier convictions for assault against Ms F, having regard to the circumstances and the nature of the offences, were not such as to require that he would treat them as “significant” for the purposes of the Crimes Sentencing Procedure Act (NSW) 1999. He did not accept the Crown Prosecutor’s submission that when Mr Makasa and the co-accused had first met the girls on 30 August the hospitality extended to them was sexually motivated in the sense that neither of them anticipated forcing themselves sexually onto any of the young girls. In other words, it was not pre-meditated. He regarded the evidence of the complainant as containing significant inconsistencies and that it was clearly open to the jury to find that they were not satisfied beyond reasonable doubt of the matters that they were required to be satisfied of. He also considered the complainant’s recollection of events must be considered in the light of the fact that she was heavily affected by intoxicating liquor.
However, His Honour observed that the offence that the offenders had been found guilty was of a “very serious nature”. However he observed:
I have no doubt that all three offenders are very unlikely to reoffend, and in my view it is highly likely that in due course they will lead fruitful and productive lives. Despite the fact that Mr Makasa does have the convictions to which I earlier referred, I see no reason for differentiating between the offenders when imposing sentence in respect of count one on the indictment.
These sentencing remarks were made having regard to count one (the joint criminal enterprise) on which Mr Makasa had been found guilty by a jury but was acquitted by the Court of Appeal. The views expressed by His Honour as to the unlikelihood of reoffending must carry substantial weight because the final trial had taken over three months, during which time the judge had an opportunity to observe and evaluate the character of the accused.
Having regard to the above considerations I am of the view that while the conduct is serious and of a sexual nature it is not at the higher end of the spectrum of seriousness.
Risk to the Australian Community
In assessing the need for protection of the Australian community against the risk that the conduct may be repeated in accordance with para 9.1.2 of the Direction, the person’s proven general conduct and total criminal history are highly relevant.
Mr Makasa does not have a recent history of convictions. It has been more than six and a half years since his last offence. During that period he has been through a substantial period of incarceration and detention with six sets of proceedings and with the consequent personal strains. I have taken into account that he has breached bonds imposed by the Courts on two occasions.
Two experts, Dr Ashkar and Ms Duffy, were relied on to provide some support to the submission that there is no significant risk of recidivism and future harm to any member of the Australian community by Mr Makasa. The evidence of both these witnesses has been attacked in cross-examination in relation to the history on which they relied as furnished by Mr Makasa and also as to method of assessing risk. There were some inconsistencies in the report of Dr Ashkar in relation to the level of risk. It was submitted that Dr Ashkar was not provided with a truthful account of the Applicant’s history, did not appreciate the magnitude of the common assaults in 2005 and that he failed to take into account events of 30 August 2006. In relation to the latter consideration, I have decided that the events referred to have not been proven. Dr Ashkar impressed me as a very experienced well-qualified psychologist and I accept the substance of his report, although with some reservation.
In regards to the evidence of Ms Duffy, it is submitted that no weight should be placed on her expert report. I do not place any significant weight on her report as she was not available for cross-examination.
During the course of the hearing, Mr Makasa was extensively cross-examined. I had an opportunity to consider his response to questioning.
Although there are inconsistencies in his evidence, I am satisfied that these experiences have provided strong incentive and deterrent to the likelihood of any further repetition of his previous conduct or other serious conduct. He has expressed remorse and I accept this. I have taken into account the fact that at the time of the offences he was aged 22. He is now almost 30. I am persuaded that as a result of the passage of time he has matured and experienced lengthy detention and deprivation which can be expected to act as a substantial deterrent. These factors will in my view lessen the risk of repetition of the conduct or any similar conduct. As noted earlier the conduct was in circumstances where extensive consumption of alcohol was involved and, according to the sentencing judge, the conduct does not appear to have been pre-meditated. The opinion of the sentencing judge as to the unlikelihood of reoffending is also an important and relevant consideration.
In addition, for the reasons set out below, I consider that the Applicant has extremely strong family support in circumstances where there is deep mutual affection and genuine regret on the part of the Applicant for having involved his family, particularly his mother, sister and current partner, in the traumatic events of the last seven years. This will serve as a substantial deterrent.
Having regard to the seriousness and nature of the relevant conduct as well as the above matters, I do not consider there is an unacceptable risk of harm to the Australian community if the visa of Mr Makasa is not cancelled.
TIES TO THE AUSTRALIAN COMMUNITY
The evidence establishes that the Applicant has strong family ties to Australia with his children, his present partner, and his mother and sister. These witnesses impressed me as having deep concern and affection for and attachment to Mr Makasa. He has lived in Australia since 2002. He was 18 years of age when he arrived in Australia. He has spent 40 per cent of his life in Australia, including all of his adult life. He has no emotional or social ties to Zambia. According to Dr Ashkar he has undergone a process of “acculturation” to the Australian community since his arrival.
I consider that Mr Makasa’s ties to Australia are strong and should be accorded considerable weight in favour of not cancelling his visa.
BEST INTERESTS OF MINOR CHILDREN
This is a very important consideration in the present circumstances. There are three children of tender years whose best interests could be adversely affected by cancellation of Mr Makasa’s visa.
Notwithstanding criticisms raised in cross-examination and in the submissions for the Minister, I am satisfied Mr Makasa has attempted to, and to some extent has retained, significant contact with his children by telephone and the internet and via some personal contact over a continuous and lengthy period.
The Applicant has two biological children with his former partner Ms F who now live in Perth with their mother - T aged seven years and R aged four years. In relation to T, the Applicant lived with her in Sydney for the first two months of her life. In the period Mr Makasa was in custody between 1 September 2006 and 13 February 2008, the Applicant saw T on some occasions during a three week period when Ms F came to visit Sydney and she took T to visit Mr Makasa. Mr Makasa was released on conditional bail on 13 February 2008 for a period of about 18 months and saw T on at least five separate occasions.
During the period 8 October 2010, when Mr Makasa was acquitted of the joint enterprise conviction, to 27 July 2011, when he was taken into immigration detention, Mr Makasa claimed to have travelled to Perth on a number of occasions to see his children. There is some uncertainty regarding the frequency of these visits and Mr Makasa was unable to clearly establish the number of visits which he claimed in his evidence. However, the Tribunal accepts the Minister’s contention that these visits occurred on approximately four occasions.
Since he has been in immigration detention the children have only visited him in July 2012, during which they saw him on five separate occasions.
Telephone records in evidence establish a significant degree of contact between Mr Makasa and the children via phone generally during the time he has been incarcerated and detained.
With regard to R, Mr Makasa has had physical contact with his biological son on only a few occasions, including in August 2009 during a weekend visit and in 2011 when he travelled to Perth on about four occasions. As noted above at [77], since being in immigration detention he has saw his son on five occasions in July 2012.
A third child who would be adversely affected if Mr Makasa’s visa is cancelled is M, aged seven years, the daughter of Mr Makasa’s current partner, Ms R. The evidence of Ms R makes it clear that her daughter has formed a strong attachment to the Applicant and she stated that Mr Makasa plays an important parenting role in M’s life.
I am satisfied that there is a strong loving relationship between Mr Makasa and Ms R, notwithstanding the suggestion in cross-examination that there was for some time an overlapping relationship between Ms F and Mr Makasa.
I am satisfied that the Applicant has developed a significant relationship with M and this is substantiated by the fact that she visited him in detention on 14 occasions in 2012 and on six occasions in 2013. Again, it appears that the claimed extent of the contact was exaggerated but it has been substantial. Further, it is clear that Ms R has a deep attachment to Mr Makasa and this strengthens the potential for the development of a closer significant relationship and a father role in relation to M.
I have taken into account that Ms F lives in Western Australia and has a husband who has lived with Mr Makasa’s biological children for a number of years and who may have played a parenting role to some limited extent with T and R.
Overall, having regard to the above considerations, I am persuaded that there are substantial attachments between the Applicant and his two biological children and with his current partners’ daughter M and that there is potential for him to play a significant role in their future development. I consider that the relationships are important and provide substantial support for Mr Makasa remaining in Australia. I find that cancellation of Mr Makasa’s visa is not in the best interests of the children in this case.
OTHER PRIMARY CONSIDERATIONS
The Applicant was not a minor when he began living in Australia and therefore this consideration is not relevant in the present circumstances.
There are no relevant international obligations in this case.
OTHER CONSIDERATIONS
Where relevant the “other considerations” outlined in para 10(1) of the Direction must be taken into account but are given less weight than the foregoing primary considerations.
The Applicant has strong family ties and significant relationships and support from his immediate family in Australia. In particular his mother and sister were most impressive witnesses. He also has an attachment to his church.
In addition, Mr Makasa has a loving relationship with Ms R. He has previously lived with her family, contributed to some extent to her household and assisted with the care of M. Notwithstanding the difficulties arising from incarceration and detention, they have been together since 2009 and he receives positive support from her.
The cancellation of Mr Makasa’s visa will have significant adverse impact on Ms R, and his mother and sister, from whom he could anticipate receiving substantial moral and psychological support. Indeed, his affection for his family and Ms R provide a powerful motivation for refraining from engaging in future serious misconduct.
It cannot be said that the Applicant does not have any links to the country to which he would be removed. However, he has spent 40 per cent of his life in Australia and any connection with Zambia is presently insignificant. There would be no cultural or linguistic disadvantage to Mr Makasa if returned, but there is evidence of his adaptation to Australian culture. Taking these matters into account, the adverse emotional impact of him being separated from his children and his family in Australia would still be significant.
CONCLUSION
Having taken into account the above considerations, I do not consider that the visa of Mr Makasa should be cancelled. The extent of the serious conduct in this case is not sufficient to outweigh the more powerful considerations arising from the best interests of the children, the relatively low risk to the Australian community, the strong family attachments and support which make recidivism unlikely, and the deterrent effect of the severe adverse impact of incarceration and the extensive legal proceedings. These all point in favour of this conclusion.
DECISION
The decision of the Minister to cancel Mr Makasa’s visa is set aside and there is substituted the decision that the visa should not be cancelled.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. B J M Tamberlin QC, Deputy President.
.............................[SGD]...........................................
Associate
Dated 8 November 2013
Date(s) of hearing 26-29 August 2013 & 4 October 2013 Counsel for the Applicant Mr A Ahmad Solicitors for the Applicant Corrs Chambers Westgarth Counsel for the Respondent Ms N Sharp Solicitors for the Respondent Sparke Helmore
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