Limatasi Poto and Minister for Immigration and Citizenship
[2012] AATA 331
•4 June 2012
[2012] AATA 331
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0986
Re
Limatasi Poto
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor, SC
Senior Member A K BrittonDate 4 June 2012 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Senior Member P W Taylor, SC
CATCHWORDS
MIGRATION - visa cancellation - Direction [41] - significant risk of harm to Australian community - low probability of reoffending - hardship of prospect of deteriorating health - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) - ss 4, s 501 and subss 499(2A), 500(1)(b), 501(2), 501(7)(c)
Crimes Act 1900 (NSW) - s 61K
Crimes (Domestic and Personal Violence) Act 2007 (NSW)- s 13
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493; (1993) 112 ALR 198
Rosson v Minister for Immigration & Citizenship (2011) 191 FCR 390; [2011] FCA 194
Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1; [2010] FCA 495
REASONS FOR DECISION
Senior Member P W Taylor, SC
Senior Member A K Britton4 June 2012
Mr Limatasi Poto is a 29 year old Samoan born New Zealand citizen. He came to Australia in January 2004 with his parents, his younger brother and one of his two younger sisters. (His other sister had come to Australia some months earlier.) He has resided here ever since, apart from three short holidays to Samoa or New Zealand in early 2005, September 2008 and July 2009. Since June 2010, he has been in custody, serving sentences for convictions for three offences committed in April and June 2010.
Until 23 February 2012 Mr Poto held a Sub Class 444 Special Category Temporary visa. On that date the Minister’s delegate, acting pursuant to subs 501(2) of the Migration Act 1958 (Cth) (the Migration Act), cancelled Mr Poto’s visa. That cancellation is the decision under review in these proceedings.
The threshold basis for the cancellation decision was satisfaction that Mr Poto did not pass the character test in subs 501(2) of the Migration Act. He did not pass the character test because he had a substantial criminal record, within the meaning of subs 501(7)(c). That substantial criminal record arose from the three convictions referred to above. Those convictions involved the following matters:
(a)an April 2010 assault with intent to have sexual intercourse. Such an assault constitutes an offence under s 61K of the Crimes Act 1900 (NSW) and is potentially punishable by imprisonment for a period of up to 20 years. Mr Poto pleaded guilty to this offence. He was convicted on 8 June 2011 in the District Court of NSW and sentenced to imprisonment for a term of three years, with a non-parole period of 18 months. The non-parole period expired on 30 November 2011.
(b)two offences in June 2010 of stalking or intimidating with the intention of causing a person fear of harm. Conduct of this kind constitutes an offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and is punishable by a term of imprisonment for up to five years. Mr Poto also pleaded guilty to these charges and was convicted on 10 June 2011 in the Campbelltown Local Court. He was sentenced to a fixed term of imprisonment of one year for the first offence and a two year term of imprisonment for the second offence, with a non-parole period of 12 months. The fixed term sentence, and the non-parole period, are due to expire on 9 June 2012.
Exercise of the subs 501(2) visa cancellation power by a Minister’s delegate, or by the Tribunal in the review function conferred by the Migration Act subs 500(1)(b), is subject to compliance with Ministerial Direction [41] – Visa refusal and cancellation under s 501. That compliance requirement arises from the mandatory terms of the Migration Act subs 499(2A).
The objective of the Migration Act is to regulate, in the national interest, the entry of non-citizens and their presence in Australia. Visas issued under the Migration Act are the only source of the right of non-citizens to enter, or remain in, Australia: see Migration Act s 4. The purpose of Direction [41] is to provide general guidance to facilitate achievement of the objective of the Migration Act. That guidance includes the declaration that the Government seeks to protect the Australian community from “unacceptable risks of harm” as a result of criminal conduct, and other serious conduct, by non-citizens. The guidance includes the further declaration that the Government is particularly mindful to protect the safety of the more vulnerable members of the Australian community: Direction [41] cl 5.1.
Determining whether a non-citizen’s continued presence in Australia involves an “unacceptable risk of harm” requires consideration of a wide range of factors. They include both the nature of the potential harm, the risk of its occurrence, the period of the person’s Australian residence (including the extent to which it occurred during their minority), and other governmental obligations and responsibilities: Direction [41] cl 5.2. The matters that must be considered, in the exercise of the visa cancellation power that arises when a person is unable to satisfy the Minister that they pass the character test, are set out in Part B of Direction [41] cl 8-11.
Part B of Direction [41] requires the Tribunal to take into account four primary considerations, and a range of other defined considerations: Direction [41] cl 9. Three of those primary considerations (i) protection of the Australian community (ii) the person’s age when they came to live in Australia and (iii) the period of the person’s Australian residence before engaging in any impugned conduct, must necessarily arise for consideration in every case. The fourth primary consideration addresses “relevant international obligations”. These are illustrated by (but not limited to) obligations arising under the Convention on the Rights of the Child, and obligations arising under the Convention and Protocol Relating to the Status of Refugees. These kinds of matters will not necessarily arise for consideration in any particular visa cancellation decision. Their actual relevance will depend on the circumstances of particular person. In Mr Poto’s case there are no circumstances requiring their consideration. Mr Poto has no children. Although he has four nieces and nephews who live in Australia, and claims to have a special bond with one three-year-old nephew, there is no convincing evidence that any children are relevantly dependent upon him to any significant extent. Mr Poto is not a refugee or otherwise in need of protection.
In addressing the primary consideration of the protection of the Australian community in the exercise of the visa cancellation power conferred by the Migration Act s 501, Direction [41] clause 10.1 requires due consideration of the objective of the Migration Act and the safeguarding of the Australian community, particularly its more vulnerable members. Factors relevant to assessing the risk of harm include the nature and seriousness of the person’s relevant conduct, and “any risk of re-offending”: see cl 10.1.2(1). Direction [41] cl 10.1.1(1) describes crimes of violence as “especially abhorrent to the whole community”. Clause 10.1.1(2) categorises a range of examples of conduct and offences that are regarded as serious, for the purpose of giving content to the primary consideration of protection of the Australian community. Relevant to Mr Poto’s review application, the examples of offences that are considered serious include “rape and other sexually based offences”, and offences against children. Mr Poto's 8 June 2011 conviction for assault with intent to have sexual intercourse was, by virtue of its nature, and the circumstances we describe below, a sexually based offence. His 10 June 2011 convictions involved two 16 year old schoolgirls.
Direction [41] cl 10.1.1(3) also points to the relevance of the number, nature, timing and recency of any offences, as well as the person’s sentence, in assessing the level of any risk of harm to the community associated with the person’s continued presence in Australia. Necessarily the proper evaluation of these kinds of relevant considerations requires regard to the person’s individual circumstances relating both to the offence and to their rehabilitation. In assessing evidence relating to these matters greater weight is to be given to any “independent and authoritative sources” of information relating to the person. These kinds of “sources” include remarks made by the sentencing court, parole assessments and professional medical and psychological reports: Direction [41] cll 10.1.1(4) and 10.1.2.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Mr Poto’s 8 June 2011 conviction for assault with intent to have sexual intercourse arose out of the events on the evening of 17 April 2010, and occurred at an hotel in the early hours of the following morning. After playing football, Mr Poto had been drinking alcohol, first at his uncle’s home and later, with his uncle, at the hotel. According to the transcript of Mr Poto’s evidence at the sentencing hearing, closed circuit television footage obtained from the hotel showed Mr Poto in the poker machine room at the hotel. He was sitting watching a young woman. The woman, who was a stranger to him, got up and went to a nearby female toilet. The television footage showed that Mr Poto entered the female toilet a little later. The woman had used one of the cubicles, but it had not flushed. She emerged from the cubicle about the same time that Mr Poto entered the room. Not initially alarmed by his presence, and thinking that he wanted to use the cubicle, she explained to him that the cistern had not flushed. The two of them were then standing close to the cubicle entrance. They each tried, unsuccessfully, to flush the cistern. Mr Poto then took hold of the woman, pressed his body against her, kissed her on the neck area and raised her skirt. Despite her complaint and resistance, he put his hand between her legs and into her underwear, in an apparent endeavour to achieve at least digital penetration. The young woman resisted his efforts and screamed loudly. Her screams alerted nearby hotel staff. One of them came into the toilet and saw Mr Poto. He had one hand over the woman’s mouth and his other hand between her legs. Mr Poto attempted to flee, but he was apprehended and shortly afterwards taken into police custody. Mr Poto was granted bail on 19 April 2010.
Mr Poto’s 10 June 2011 convictions for two offences of stalking or intimidation arose out of events that occurred on 2 June 2010, about 6 weeks after his 18 April 2010 arrest and whilst he was on bail. The first of these stalking offences occurred at about 0915 on the morning of 2 June 2011. Mr Poto had driven his youngest sister to school and was at a service station. According to the sentencing Magistrate’s comments, he drove his car out of the service station and slowly down the road alongside a 16-year-old girl. She was dressed in a school uniform and walking along the footpath to her school several hundred metres down the road. Mr Poto did not know the girl, but he gestured for her to come over to him. She ignored him. He then drove ahead and stopped the car near a laneway and waited. As the girl drew level, he again gestured for her to come over. The young girl continued walking. Mr Poto drove after her again. When the car drew level with her, he drove slowly alongside and again gestured for her to come over. She continued walking. He then drove around a corner and stopped where the young girl would have to pass him. As she passed, he again gestured to her, and called out to her to come over. The young girl, having become frightened, then ran across, and down the road. When she reached a pedestrian crossing some way down the road, and very near her school, Mr Poto again drove slowly along near her and yelled and gestured for her to come over to him.
The second of the stalking offences occurred a few minutes later. Mr Poto stopped his car on the side of the same road where the service station was located. He watched another 16 year old schoolgirl walking along the footpath to school. She walked down the road to the next intersection and stopped on the island that divided the cross street. Mr Poto drove his car into the intersection and stopped in front of her. He called to her to come to the car. She ignored him. Mr Poto then drove his car into the cross street and stopped there. He watched the young girl continue walking. A little while later he drove down the road towards her. She reached the pedestrian crossing near her school. As she did so, Mr Poto stopped his car alongside her and loudly called on her to come and get into the car. The girl then went into her school, reported the matter, and broke into tears.
In his evidence to the Tribunal in these proceedings Mr Poto agreed that he had spoken to the girls, and had attempted to call them over to his car. He claimed however, that he had only asked them for the telephone numbers. We do not accept that this is an accurate account of the events. It is not reflected in the sentencing judge’s remarks or the transcript of the submissions that were put on his behalf. Neither does it appear in the police fact sheets that appear to have formed the agreed factual basis on which the sentencing Magistrate proceeded. More significantly, Mr Poto’s claim that he merely asked the girls for their telephone numbers is not consistent with the handwritten letter of apology Mr Poto addressed to the Magistrate at the Liverpool Local Court. That letter, which Mr Poto now concedes was untrue, claimed (i) he had almost hit one of the girls with his car, because she ran across the road, (ii) he had yelled at her to watch out, (iii) as he drove off he saw the girl say something back at him, (iv) he went back and asked her what she said, (v) he apologised to the Magistrate that he had been angry. There is nothing in the letter suggestive of a mere request for telephone numbers. On the contrary, the letter’s protestations of concern about the girl having nearly caused an accident, and anger at her reaction, is inconsistent with the potentially more benign “telephone number request” that Mr Poto asserted in his evidence to the Tribunal in these review proceedings.
In rejecting the “telephone number request” account we take into account that Mr Poto was sentenced on the basis that all but one of his calls to the girls were invitations to come to the car, rather than an explicit call to get into the car. We also appreciate that there was no suggestion he ever left the car or used or threatened any violence. Nevertheless he persisted in pursuing the girls and pleaded guilty to offences of having done so with the intention of causing them fear of harm.
The circumstances of the assault incident on 18 April 2010, as we have set them out above, amply justify characterising that offence as serious criminal conduct. It was a forceful attempt to overcome a young woman for the apparent purpose of having sexual intercourse with her, even though she was a total stranger. There is no suggestion that the woman did anything to encourage Mr Poto’s sexual attention — nor did Mr Poto ever attempt to explain his conduct on that basis. The evidence Mr Poto gave at the sentencing hearing asserted a complete lack of recollection of the events. The evidence also included a written apology he addressed to the young woman. In that apology Mr Poto described his conduct as “that very unconscious intoxicated moment”. The sentencing judge was prepared to accept both Mr Poto’s asserted lack of recollection and his assertion that his conduct had been affected by alcohol. But the judge went on to comment that Mr Poto’s lack of recollection did not mean that “his actions on this night, although fuelled by alcohol, were not deliberate and predatory”. Moreover, the judge did not accept that any alcohol related disinhibition relevantly detracted from the seriousness of Mr Poto’s conduct. The sentencing judge proceeded on the basis that Mr Poto’s conduct had been deliberate, and remarked that the offence was “so objectively serious that no sentence other than jail was appropriate, despite all matters raised in mitigation”. Furthermore, the sentencing judge went on to comment that it was essential for Mr Poto to undertake rehabilitation “both as to alcohol and other drug treatment and sex offender treatment in the community”. The sentencing judge thought Mr Poto should spend at least 18 months on parole. He made a finding of special circumstances to allow for that period of extended supervision.
The two stalking / intimidation offences against 16 year old girls must also be regarded as serious for the purposes of Direction [41] cl 10.1.1. The fact that these offences occurred so shortly after the 18 April 2012 assault, and whilst Mr Poto was on bail, is a matter of significance, that has to be considered as particularly relevant to an assessment of Mr Poto’s risk of re-offending: Direction [41] cl 10.1.2(2). These two offences cannot be linked to alcohol induced disinhibition. On the contrary, they appear to have been deliberate and potentially predatory. That appearance makes it more difficult to conclude that the circumstances of the earlier assault, although aberrant compared to his previous good conduct, are highly unlikely to be repeated. The nature and timing of these stalking offences contributes to our apprehension, which are also reflected in the remarks of the sentencing judge on 8 June 2010, that there is a risk of Mr Poto re-offending.
In assessing the significance of that risk it is necessary to take into account that all three of Mr Poto’s offences fall within the concept of seriousness described in Direction [41] cl 10.1.1. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493, in the context of a person’s past convictions of violent, unprovoked sexual assault, the Federal Court of Australia said that the “risk” assessment relevant to the exercise of the relevant power (in that case deportation) had both quantitative and qualitative elements. A risk that was quantitatively low, because it had minimal probability of occurring, could nevertheless be qualitatively “real”, if the chances of its occurrence were not “far-fetched and fanciful”: at 501.
It also necessary to have regard to what has occurred since Mr Poto committed each of the offences. This involves regard to both the period immediately after the offences, and the period of Mr Poto’s incarceration.
Initially, Mr Poto denied the assault offence. In a record of interview he gave to the police a quite different version of events. In that version he denied any misconduct on his part. It appears that he persisted in this denial, and maintained his not guilty plea, for many months. However in the evidence he gave at the sentencing hearing on 8 June 2011, which proceeded on the basis of guilty plea, Mr Poto said he had no recollection of events and admitted that he had lied during the course of the interview in an attempt to protect himself. His guilty plea, although belated, and his current candour about his previous explanations for his conduct, indicate his acceptance of responsibility, as the sentencing judge found.
In relation to the stalking charges, we have referred above to the letter Mr Poto wrote to the Liverpool Court Magistrate. Nevertheless we also note that the transcript of the sentencing proceedings records that he in fact entered an early guilty plea to the first stalking charge. The second stalking offence was also dealt with on the basis of a guilty plea, although one that was entered much later. Mr Poto explained that the reason for the distinction between the two pleas was that he saw a distinction between “stalking” and “intimidating” and initially he did not believe that he had intimidated, or at least not intentionally intimidated, the second girl. We are prepared to accept this explanation for the initial difference between the two pleas, not because it is particularly compelling, but because it does indicate that Mr Poto’s ultimate guilty plea on the second charge does suggest that he did come to accept the real significance of his conduct and the effect that it had on both of the girls. For these reasons Mr Poto’s guilty pleas do reflect, as the sentencing reasons also indicate, some degree of insight and acceptance of responsibility by Mr Poto.
Mr Poto has been in custody, either awaiting trial, or serving his sentences, since 2 June 2010. As at December 2011, Mr Poto was an inmate at the Parklea Correctional Centre, where he was classified as a minimum-security inmate. Of recent times he has been employed at Parklea prison on ground maintenance and is regarded as a keen worker. According to his prison records, which include occasional drug testing, Mr Poto has not incurred any institutional misconduct reports. He is regarded as polite, courteous, respectful and considerate towards staff and inmates.
Whilst he has been in prison Mr Poto has undertaken various courses available to him within the prison system. Those courses include an alcohol and drug abuse program that he commenced, but was unable to complete because he was moved to another prison facility. A probation and parole service presentence report of 29 April 2011 attributes to Mr Poto a report of long-standing alcohol abuse, commencing with binge drinking at 18 years of age. In his sentencing evidence on 8 June 2011 Mr Poto said the program had helped him to control his alcohol problem, and was something that would be likely to be good for him in the future. Mr Poto has also undertaken a Bible study course, a commercial cleaning course, and Certificate 1 courses in music and in the operation of a personal computer.
In about August 2011 he undertook some preliminary testing to assess his risk of re-offending. Subsequently he was accepted for, and between about November 2011 and April 2012 undertook, a “moderate intensity” rehabilitation program for sex offenders. The program is intended to provide offenders with attitudes, skills, values and resources to assist them in being able to avoid the risk of re-offending. Mr Poto thinks that the program has been of considerable benefit to him in preparing for his successful return to the community. It has reinforced for him the importance of respect in his relationships with women. The formal Treatment Report issued by NSW Corrective Services records that Mr Poto completed the treatment program satisfactorily. But even so the Treatment Report concludes that “taking into account both static and dynamic risk factors” Mr Poto had a “low-moderate” risk of re-offending. We accept that the period of Mr Poto’s incarceration, and the associated risk of visa cancellation, is likely to operate as a salutary deterrent against the risk of his re-offending. We also accept that he has expressed contrition and remorse, particularly at the sentencing hearings for his various offences. In addition the evidence he has provided in his letters responding to the visa cancellation notice, and to the cancellation itself, show an appropriate level of remorse and awareness. That awareness and remorse is enhanced by the record of his good behaviour in prison. His educational achievements whilst he has been in prison are somewhat modest, but they are encouraging and creditable to him, especially given his lack of complete fluency in at least his oral English. As the sentencing judge remarked on 8 June 2011, Mr Poto’s good discipline record in jail, and his apparently constructive use of the educational opportunities available to him in jail, provide "some prospects for success" in relation to his rehabilitation.
But the assessment of the appropriate protection of the Australian community involves regard to both the probability of re-offending conduct and also to the nature of the apprehended conduct. When regard is had to the probability of re-offending, we are struck by both the circumstances of the assault offence (its forceful nature against a young woman he did not know) and the fact that the stalking / intimidation offences involved schoolgirls and occurred so soon after the assault. We are unable to conclude that the risk of Mr Poto re-offending is minimal. We are more of the view that the risk of his re-offending whilst low, is significant.
The risk of reoffending is an assessment influenced by information about the number, nature, frequency and recency of any relevant offences, the degree of compliance with sentencing orders, undertakings or conditions, and evidence of rehabilitation, both demonstrated and prospective: Direction [41] cl 10.1.1 (3). But the actual contribution of this kind of information to any particular assessment is inevitably impressionistic. Generally, the more recent, serious or frequent the subject offences are, the greater the likelihood of repetition of similar offences”. Conversely the more emphatic is the evidence of rehabilitation, the less likely the repetition of past criminal conduct. But between these extremes lie situations where serious past conduct is comparatively isolated, but the evidence of rehabilitation is recent, somewhat prospective and comparatively equivocal.
In this context answering a question about what constitutes an “unacceptable risk of harm”, and the extent of the risk of the person re-offending, must necessarily focus on meeting the objective of the Migration Act in safeguarding and protecting the community. Achieving that objective involves an impressionistic assessment of the probability of re-offending conduct, regard to the available evidence of rehabilitation, and an appropriate reservation about the accuracy with which any such assessment can be made. In addition, the objective of protection must acknowledge that risk involves concepts of both probability of occurrence and the nature and extent of any justifiably apprehended harm. In reality, unless the evidence provides a real satisfaction that a person’s past criminal conduct was atypical and most unlikely to be repeated, there will always be some apprehension the person may re-offend. And if the nature of the apprehended harm is "serious", in the sense described in Direction [41] cl 10.1.1, the relevant risk may be regarded as significant and unacceptable.
Whether that characterisation of the risk of reoffending should be made in any particular case is not amenable to syllogistic reasoning from a particular premise, or a set of facts, to a logically compelled conclusion. It is a characterisation informed by conscientious consideration of the relevant facts, but one that ultimately involves an impression about the significance of those facts, and the inherent uncertainty of such a process of risk assessment.
In the present case we attach particular significance to the predatory and sexual nature of the assault on 18 April 2010. We are conscious of the fact that this is the only such offence. We also acknowledge the elements of contrition and remorse displayed by Mr Poto at the sentencing hearing on 8 June 2011. His subsequent prison behaviour is at least consistent with the genuineness of that remorse and contrition. We accept in addition that his good history, both before the offences and whilst in custody provides some evidence that he has good prospects of rehabilitation.
The availability of support from his extended family might also be thought to have a positive impact on his prospects of rehabilitation. However, there is, in reality, an uncertainty about the significance of such a conclusion - because there is no substantive difference, or at least no persuasively substantive difference, between the support that was available to Mr Poto now, and in the period before the assault offence in April 2010. Furthermore, the two offences of stalking occurred not long after the assault offence, and at a time when Mr Poto was on bail. The proximity of those offences, their predatory nature, their connotations of sexual importuning, the apprehensions expressed by the sentencing courts (evidenced by the importance of a significant non-parole period) and the fact that Mr Poto’s currently available evidence of rehabilitation are untested by exposure to community living, all combine to lead us to the conclusion that Mr Poto's risk of reoffending should be regarded as significant. We accept, as did each of the sentencing courts, that his offending behaviour is, as a mere matter of probability, unlikely to be repeated. But the degree of confidence about that conclusion depends upon his ability to maintain, once he returns to the community, both his family support and the personal discipline with which he has applied himself during his incarceration. It is both the uncertainty of that prospect, and the serious nature of his previous offences, particularly the 18 April 2010 assault, which lead us to characterise his risk of reoffending as significant.
OTHER PRIMARY CONSIDERATIONS - AGE AT ENTRY AND PERIOD OF RESIDENCE
Mr Poto lived in Samoa until he was 18 and did most of his schooling there. He completed a further two years of his high school education in New Zealand. He came to Australia in January 2004. It follows that all of his formative years were spent in either Samoa or New Zealand. Clause 10.2 of Direction [41] contemplates that a person’s upbringing as a minor in Australia should be taken into account as a primary consideration and may, depending on the particular circumstances, be favourable to the person’s continued status as a visa holder. Conversely, where the person entered Australia as an adult, that is a consideration that tends to point, in the overall exercise of the power, to the appropriateness of the visa cancellation: Rosson v Minister for Immigration & Citizenship (2011) 191 FCR 390 at 395 and 396-7.
Mr Poto’s only other offence was that of driving whilst disqualified. This occurred sometime before May 2008. He was fined $600 and his licence disqualified for 12 months. Mr Poto said in his evidence to the Tribunal in these proceedings, that he had never received notice of the suspension of his driver’s licence. There is no evidence to the contrary. This offence, some 4 years after Mr Poto came to Australia, does not positively assist Mr Poto’s review application. But it is of a totally different character to the other offences to which we have referred above. We regard it as relevant but, like the sentencing courts, not a material consideration in influencing our assessment of the significance and acceptability of his risk of re-offending.
OTHER RELEVANT CONSIDERATIONS
The considerations required by Direction [41] include a number of matters additional to the primary considerations outlined earlier in these reasons. These “other” considerations should generally be given less weight than the primary considerations, although they may be determinative in some situations: Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1 at 14. These other considerations include (i) the person’s family ties and relationships, (ii) the person’s age health and vulnerability, (iii) the extent of the person’s links to the country to which they would be returned, (iv) any hardship likely to be suffered by the person, or their family, (v) the person’s inability to advocate on their behalf due to lack of education, and (g) whether the person had previously been formally advised about conduct that brought the person within the visa cancellation provisions of the Migration Act: Direction [41] cl 11.
Family ties and relationships
Mr Poto is the eldest of four children. All of Mr Poto’s siblings, and his mother, live in Sydney. He has five uncles and aunts, four nieces and nephews, 17 cousins and one grandparent, with whom he has regular contact. All are well settled in Australia. His father returned to Samoa several years ago and Mr Poto has not spoken to him for a long time. He asserts a close relationship with his mother and siblings. Immediately before his incarceration on 2 June 2010 Mr Poto lived with his mother, during the working week. His mother said that he contributed to the household expenses. This was a significant help to her, and it would involve difficulties for her if he had to return to New Zealand and could not return to live with her.
For some time before June 2010, Mr Poto used to spend the weekend with a young woman whom he described in his sentencing evidence on 8 June 2011 as his partner. That relationship had started in May 2007, but it appears (from the contents of the Treatment Report to which we referred earlier) to have been under stress at the time of the offences. The relationship ended after Mr Poto went to jail. His last contact with the woman was sometime between December 2010 and April 2011.
During the period he has been in jail Mr Poto has received regular weekend visits from his mother, siblings, aunts and uncles and friends. The closeness of Mr Poto’s available family support is attested to by his mother, one of Mr Poto’s uncles (who is not much older than Mr Poto and used to play football with him) and the family's local parish priest. The statement provided by the parish priest describes the family is a strong unit, likely to look after Mr Poto and provide him with continuing support in getting on with his life. There are similar declarations of support for Mr Poto from his mother, grandmother, numerous aunts and uncles, all three of his siblings and his brother-in-law.
We accept that Mr Poto has many close, and at least potentially supportive, family ties in Australia. However, it is appropriate to note that at least one of the supporting acknowledgements of the parish priest is dated 10 May 2010. That is in the period between Mr Poto’s arrest on the assault charge and his subsequent arrest on the two stalking charges. Similarly there is an observation in the probation and parole service presentence report of 27 April 2011 which commented that whilst Mr Poto’s family expressed their support, they appeared to be unaware of the nature of his offences and his alcohol problem. Evidence that Mr Poto’s mother and uncle gave in the present proceedings corroborate the fact that they were not, in the past, fully aware of Mr Poto’s difficulties with alcohol. These comments, together with the circumstances of Mr Poto’s past offences, despite the family support apparently available to him, contribute to our apprehensions that Mr Poto’s immediate family connections do not provide a strong basis for concluding that there is a merely minimal risk of his re-offending.
Age, health and potential vulnerability
In January 2009, following investigation of blurred vision in his right eye, Mr Poto was diagnosed with multiple sclerosis. More recent MRI examinations suggest that diagnosis is questionable. But Mr Poto’s treating neurologist nevertheless thinks the diagnosis is likely to be correct. Since his initial presentation in early 2009 Mr Poto has had a good recovery of vision in his right eye, but he still has some blurring. His multiple sclerosis is treated by injections of Betaferon injections every second day.
Multiple sclerosis, in its most typical form of “relaxing / remitting MS”, generally leads to a progressive accumulation of disability over a period of 10 to 12 years. By the end of such a period an MS sufferer who has not been receiving treatment can expect to encounter difficulties with walking, and may become wheelchair bound. They are unlikely to be self-caring, and will require some level of at least mobility assistance. They may also require some assistance with cognitive functioning. Medications such as Betaferon, and other similar drugs, can reduce the severity and frequency of symptoms of multiple sclerosis. These kinds of medication are likely to reduce the rate and extent to which an MS sufferer’s disability progresses over time. Mr Poto’s treating neurologist explained that the effect was significant, but that there was not sufficient available research data to quantify the likely effect with any real precision.
We accept that Mr Poto has, and is being treated for, multiple sclerosis. Currently his symptoms do not indicate any significant degree of disability. If he was to return to New Zealand, his current Betaferon medication would be available, as a subsidised medication under the New Zealand health care system, at least until the point where it would not materially contribute to masking his disabilities. If such a subsidy was not available, the likely annual cost of Betaferon treatment could be about $NZ30,000 – according to the estimate given to us by the national director of MS New Zealand. If Mr Poto continues with his MS medication he can expect, despite the likelihood of a progressive deterioration in his condition, to be able to sustain independent living and mobility for something in excess of 12 to 15 years. By that time he will be in his early forties. After that he is likely to require increasing levels of assistance and support. If he is returned to New Zealand that support will have to be provided by health care agencies, and whatever friends and family connections he might have been able to establish in the intervening period. At this stage at least, he does not have any close family or other relatives available in New Zealand to assist him.
It is conceivable that Mr Poto may wish to return to live in Samoa. His father lives in Samoa, as does one of his grandparents, an uncle or aunt, two nieces or nephews and four cousins. His uncle is a school principal in Samoa. Mr Poto retains his Samoan citizenship and is entitled to return there as and when he chooses.
Nevertheless Mr Poto dreads having to return to Samoa, principally because of his medical condition. He is concerned that in Samoa he would not have access to multiple sclerosis medication.
Mr Poto also has nephrotic syndrome and chronic kidney disease. These conditions were first diagnosed when he was about 10 years of age. In 2000 he underwent a renal biopsy in New Zealand. That procedure was repeated in Sydney in 2010. The precise nature and extent of his kidney condition is somewhat unclear. He takes daily medication but does not appear to have any significant acute symptoms that give rise to current disability. The most significant feature of his kidney condition is the appearance of a high level of discharged protein. There is an apprehension expressed in the medical reports that this could lead, overtime, to significant renal compromise. That is a relevant additional consideration, because of the longer term prospect of the need for Mr Poto to have good support from family and friends if his condition materially deteriorated.
Links to New Zealand
Mr Poto went with his parents to New Zealand when he was about 18. The family lived near Hamilton. There were other Samoan families nearby. Mr Poto completed his high school years in New Zealand. After completing high school he worked as a casual fruit picker. He says he has no family and no real friends in New Zealand.
Hardship issues
Prior to his incarceration in 2010 Mr Poto had worked as a dock hand, forklift driver and delivery driver. He had worked for the same employer since 2005. In a letter dated 12 July 2010 the employer described him as well respected and conscientious. Mr Poto is hopeful of regaining his employment with the same company after he is released from prison. There was nothing to indicate whether that hope had any foundation in fact, other than his past good conduct and satisfactory performance. Nor is there anything to indicate that Mr Poto’s employment prospects would be materially less, in New Zealand.
Many members of his immediate and extended family are well settled in Australia. The cancellation of his visa will remove him from that family environment. This kind of forced separation will involve significant hardship, at least at an emotional level, particularly for Mr Poto, his mother and his siblings. Whilst they will be able to correspond, by writing and telecommunication, that kind of contact is a poor substitute for the more ordinary intimacy of family interaction. In addition, there is a prospect of real eventual hardship for Mr Poto, in being unable to have supportive family members around him when, as is likely, the progress of his multiple sclerosis will eventually compromise his ability to live independently. While no guarantee that any of Mr Poto’s family members resident will be willing or able to assist him as his health declines into the future, it seems to us more likely than not that he would be provided with at least a level of support. The prospect that he may not have any family support in New Zealand should be recognised as a real source of potential hardship for him in due course.
Another aspect of potential hardship that is relevant to consider is Mr Poto’s language difficulties. He was educated in English and Samoan. His English is, judging by his letters and application in the present proceedings, functionally adequate, but limited in its fluency. Mr Poto was assisted by a Samoan interpreter. He did not require every exchange to be translated. Often he appeared to understand questions asked in English, but he preferred to answer in Samoan and have his answers translated. We make this observation with no sense of scepticism about the extent of Mr Poto’s English fluency. Our point is rather to highlight the risk that, at least without access to interpretation assistance, Mr Poto may encounter some difficulty in accessing any assistance that he requires. Those difficulties may be marginally greater for him if he returns to New Zealand and lives without the close support of family members.
Absence of warning
Mr Poto was given a letter dated 9 November 2011 notifying him of the intention to consider cancellation of his Visa. He had not received any prior warning or notification. This is a relevant consideration, but one that has little significance because of the seriousness of his offences.
DECISION
Earlier in these reasons we expressed our view that, on the currently available material, there was a significant risk of harm associated with Mr Poto’s continued residence in Australia. Our view was principally based on the nature, number and recency of the serious offences for which he was incarcerated. We considered that whilst the actual probability of his re-offending might be low, we could not confidently conclude it was minimal. In addition, Mr Poto’s age when he came to Australia points towards the appropriateness of visa cancellation. The fact that he lived here for five years before committing any serious offence is relevant to assessing his risk of re-offending, but is not otherwise a matter of weight in his favour against the exercise of the cancellation decision.
On the other hand, Mr Poto has no substantial grounding in the New Zealand community. He has no family there, and no significant friends. By returning to New Zealand Mr Poto faces the prospect of a life without the close physical support of his family members. That prospect is particularly daunting, when viewed against the background of the likely inevitable deterioration of his multiple sclerosis, and his ultimate inability to live independently.
Minds will inevitably differ on where the appropriate balance should be struck in the application and evaluation of the considerations required by Direction [41]. The offences of which Mr Poto was convicted are serious, and the assault offence is of a kind that cl 10.1.1(1) describes as of special concern. Conversely, the future that appears to await Mr Poto, if he lives in New Zealand without family support, and his multiple sclerosis progresses, will undoubtedly be hard for him.
Our view is that it is necessary to strike a balance between the uncertainty of the risk of Mr Poto re-offending if the visa cancellation decision was set aside, and the uncertainty of the degree of hardship he will encounter during, and more particularly after, 12 to 15 years of living in New Zealand. We include in that potential hardship, recognition of the possibility that Mr Poto may at some stage consider returning to Samoa. There he may not have available to him the same health services as those available in New Zealand (although there is no clear evidence to that effect). In striking that balance we consider it appropriate to accord priority to the protective object of the Migration Act, in the light of the nature, recency and proximity of Mr Poto’s offences.
The decision under review is affirmed.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Taylor, SC, Senior Member A K Britton ................................[sgd]........................................
Associate
Dated 4 June 2012
Date(s) of hearing 16, 17, 28 and 31 May 2012 Date final submissions received 29 May 2012 Applicant In person Solicitors for the Respondent Mr D McLaren, Sparke Helmore
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