Maea and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2158

Maea and Minister for Immigration and Border Protection (Migration) [2017] AATA 2158 (9 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5263

Re:Vienna Maea

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:9 November 2017

Place:Sydney

The decision under review is affirmed.

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

Deputy President B W Rayment

Catchwords

MIGRATION – non-revocation of mandatory cancellation of visa – character test – substantial criminal record – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – expectations of the Australian community – extent of impediments if removed – decision affirmed

Legislation

Migration Act 1958, ss 501(3A), 501CA(4)

Cases

Ahmed and Minister for Immigration and Border Protection [2017] AATA 1908
CCGW and Minister for Immigration and Border Protection [2017] AATA 1731

Peters and Minister for Immigration and Border Protection [2017] AATA 1414

Secondary Materials

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Deputy President B W Rayment

9 November 2017

1. These proceedings relate to a mandatory visa cancellation occasioned by the fact that at that time, the applicant was serving a term of imprisonment, and did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more, and s 501(3A) of the Migration Act1958 (Cth) (the Act) had that effect. The Tribunal is asked by the applicant to review a decision made by the Minister’s delegate under s 501CA(4) of that Act refusing to revoke the cancellation of the applicant’s visa. The statutory preconditions enlivening that section were satisfied.

2. The applicant is aged 31 years. He is of Tongan nationality and went to New Zealand when he was three. He arrived in Australia when he was aged 14 years.  He is now, and has been for some years, a disability support pensioner as a result of his mental health conditions.

3. His offending began in September 2005 when he was 19 years of age. When drunk, he walked towards two police officers threatening them and was sprayed with capsicum spray and arrested and charged with assaulting police officer in execution of his duty. He was put on a good behaviour bond for 12 months and fined.

4. In April 2009 he interfered with two young females on a train, and masturbated in front of one of them. He was given a six month good behaviour bond for those offences at Sutherland Local Court.

5. He was diagnosed with schizophrenia at that time and was suffering from auditory hallucinations. He was prescribed antipsychotic medication. There was a family history of psychosis, which also affected his younger brother.

6. In September 2010 he and his brother went to a Centrelink office to make a claim relating to his brother. Together, they assaulted an interpreter in the office, violently punching him in the head. When a security guard attempted to intervene, they both punched the guard in the head and struck him with an umbrella. Another Centrelink employee tried to intervene and the brothers also attacked him in the same manner, with punches and striking him with the umbrella. The applicant kicked the third man in the head and attacked him with the umbrella which was now broken, causing his head to bleed profusely. Shortly afterwards, the applicant and his brother were approached by two police, who were in turn attacked and punched by the applicant and his brother. The applicant violently punched a police constable and pushed him towards the ground while continuing to punch him in the head. Then the applicant attacked the second police officer, punching him with full force in the face. The two brothers were sprayed with capsicum spray by a third police officer and handcuffed.

7. The applicant was dealt with at the District Court in Sydney and received a number of concurrent sentences, and consecutive sentences, the effect of which was that he would have stayed in gaol for five years, unless released on parole. The earliest date on which he could be released on parole expired in September 2013. He was noted in the pre-sentence report as a 25 year old male with a history of substance abuse and serious mental health issues. He had been an inpatient at the Sutherland Hospital psychiatric ward for six months before the offences were committed. He experienced auditory and visual hallucinations. The sentencing judge described his prospects of rehabilitation and of not re-offending as difficult to assess. Upon release, the judge recommended that he be referred for continuing treatment by his mental health service.

8. In March 2016 he attacked a person attempting to rob him, punching and kicking him. Before the Parramatta District Court he was sentenced to a term of imprisonment of two years and seven months with a non-parole period of 12 months, again required to obey all reasonable directions as to psychiatric counselling and to take medication as prescribed.

9. No oral evidence was called before me, and the applicant tried and failed to serve on the respondent notice as required by the Act of any such evidence. The written material placed before me by the respondent shows that he has two minor children by a partner from whom he is estranged. He has had no contact with the children since his most recent custody. Prior to that time he saw them for two evenings each weekend.  He has one sister and one surviving brother living in Australia. His parents are both dead and two elder brothers suicided.

10. Ministerial Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) binds me as a decision-maker. I have referred to its effect in the following earlier decisions: Peters and Minister for Immigration and Border Protection [2017] AATA 1414 especially at [14]-[17], CCGW and Minister for Immigration and Border Protection [2017] AATA 1731 especially at [6]-[14] and Ahmed and Minister for Immigration and Border Protection [2017] AATA 1908 especially at [24]-[27]. I will not repeat what I said in those decisions.

11. The terms of the Direction are published and I will not set out its terms here.  Rather I shall refer to each mandatory consideration in turn.

12. ‘General Guidance’ is given by clause 6.2 of the Direction and certain ‘Principles’ are set out in clause 6.3 of the Direction, none of which need to be set out here.

13. Part C describes the primary considerations, which should generally outweigh the other considerations. The first of those is protection of the Australian community.

14. Each of the applicant’s offences was serious, and most were violent, involving serious injury to others. The sexual nature of the offence of April 2009 has been referred to above. Vulnerable members of the community were involved in several of the offences, some of which also included government officials and police officers performing their duties. The sentences imposed by the courts were lengthy and the more recent offences referred to in paragraphs [6]-[8] above were more serious than the earlier offences. It is either the case that he was non-compliant with his medication or it was ineffective and the risk of his re-offending seems to me to be real.

15. As to the best interests of his minor children, he seems to have lost contact with his former partner, and therefore with his children. His periods of custody have caused long absences from them.

16. As to the expectations of the Australian community, it seems to me that the nature of his offending is such that the community would not expect him to continue to hold a visa.

17. I turn to the other considerations mentioned in the Direction. No non-refoulement obligations arise in this matter, whether he is returned to New Zealand or to Tonga.

18. He has family ties here, to his sister, his brother and his children. He apparently has no family overseas. The extent of those ties has not been proved by any oral evidence. I have referred to the injuries suffered by a number of victims of the violence of his criminal behaviour.

19. Whether he is to be returned to Tonga or to New Zealand, there is no evidence before me to suggest that he will face any difficulty in obtaining health care.  He will have difficulty in establishing himself in whichever country he is sent to, unless he has the benefit of pension payments.

20. Despite the extent to which some of the mandatory considerations favour revoking the cancellation of his visa, I regard the preponderance of those considerations, and the balancing of all of them as favouring affirmation of the reviewable decision.

21. The reviewable decision will therefore be affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 9 November 2017

Date(s) of hearing:	6 November 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Minter Ellison