Mitiau and Minister for Immigration and Citizenship

[2007] AATA 1955

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1955

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4210

GENERAL ADMINISTRATIVE DIVISION        )

Re             Metua MITIAU

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date15 November 2007

PlaceSydney

DecisionThe decision under review is affirmed.

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

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – failure to pass character test – applicant has substantial criminal record – no mitigating factors – exercise of discretion – little evidence of rehabilitation – other considerations outweighed by the factors of community protection and expectations – decision under review is affirmed.

RELEVANT ACT/S:

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

CITATIONS

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

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

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

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

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

Al-Kateb v Godwin (2004) 219 CLR 562

Robtelmes v Brenan (1906) 4 CLR 395

…

OTHER AUTHORITIES

Direction No 21

…

REASONS FOR DECISION

15 November 2007	Professor GD Walker, Deputy President
Summary

1.      Mr Metua Mitiau was born in the Cook Islands on 10 October 1964 and is a New Zealand citizen.  He left school at the age of 13 and migrated to New Zealand in 1979 when he was 16.

2.      He first entered in Australia on a class TY subclass 444 special category visa on a New Zealand passport on 27 June 1985.  A little over a year later, he was convicted at Rockhampton Magistrate’s Court of possessing drug utensils and fined $200.

3.      Between 1986 and 2006 he was convicted of 19 other offences, including drug matters, one conviction for assault and rob, one for common assault, one for malicious wounding and several for offences of dishonesty.  On 18 April 2006 he was convicted at Sydney District Court of robbery while armed with an offensive weapon and custody of a knife in a public place.  He was sentenced to three years' imprisonment with a non-parole period of one year and eight months.  That was his heaviest sentence, followed by the six months imposed in 1987 for assault and robbery.

4. On 17 August 2007, a delegate of the minister cancelled Mr Mitiau’s class TY subclass 444 special category visa pursuant to s 501(2) of the Migration Act1958 (the Act) on the basis of his substantial criminal record.  He applied for review of that decision on 28 August 2007, and his application was heard at Parramatta by this tribunal on 1 November 2007.

Issues

5.      The issues in this case are:

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

(ii)if not, whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

The hearing and evidence

6.      At the hearing, the applicant appeared in person while Ms Bronwyn McNeil, solicitor of Clayton Utz, represented the respondent.  The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing.  The applicant gave oral evidence in person.  There were no other witnesses.

7.      Although at the directions hearing, and in the course of subsequent outreach contacts, the applicant was repeatedly reminded about the effect of s 500(6H) and (6J), he did not file or serve a witness statement, but instead relied on two earlier written statements sent to the department which formed part of the G documents in the matter (Exhibit A1).

8.      In addition, he did not arrange for the filing and service of any statements of the evidence to be presented by any other witnesses.

9.      At the hearing he told the tribunal that his current girlfriend, Angelique Carroll, who lives at Balmain, had sent, or had intended to send, a witness statement to the tribunal or the department or both, and was intending to give oral evidence at the hearing.

10.     Enquiries made during the course of the hearing found no sign of Ms Carroll in any of the waiting areas at the courthouse.  After the hearing had concluded and the tribunal had risen, I was informed that Ms Carroll had been found.  She had apparently been given incorrect information about the hearing by certain reception staff at the courthouse, but had been present all along and was hoping to give oral evidence.

11.     In those circumstances I would normally not have hesitated to reopen the hearing for the purpose of taking her evidence.  It had become apparent in the course of the hearing, however, that she had not lodged a witness statement either with the tribunal or with the department.  Consequently, any oral evidence she could have given would have been made automatically inadmissible by s 500(6H) of the Act.

12.     About ten days after the hearing, the tribunal was informed that the respondent had in fact received a written statement by Ms Carroll.  It had been faxed to the respondent on 29 October 2007, the day before the hearing, but had been overlooked, presumably because it used the surname Dick, apparently an alias of the applicant, rather than his correct name, Mitiau.

13.     If received the day before the hearing, the statement would still have fallen foul of the two-day rule, but it was necessary to ascertain whether the applicant disputed that the statement was not faxed to the respondent until the day before the hearing.  If he had, I would have re-opened the hearing for the purpose of receiving his evidence (and presumably that of Ms Carroll) on that point.

14.     I caused my associate Ms Wallace to telephone the applicant at Villawood to ascertain his position on the matter.  He told her that he thought the statement had been faxed to the respondent before the hearing, but he was not sure when.  He then said “you” (presumably the tribunal) should “sort it out”, and abruptly ended the conversation.  The applicant thus did not dispute that the statement was not faxed until the day before the hearing and was therefore out of time.

15.     The applicant’s letters to the department in Exhibit A1 are undated but appear to have been written in July 2007.  In them the applicant states that he is aware that he does not pass the character test but points out that he has been sentenced to a term of 12 months' imprisonment or more only once while residing in Australia.

16.     He stated that while not wishing to minimise his responsibility for the offences, they were committed “invariably while in the clutches of a ferocious and ravaging drug habit, my mental state was extremely unstable and my perceptions were distorted”.  His offences were always interspersed with long periods of honest work and equilibrium in his life.

17.     He said his daughter, now aged 19, is currently at a vulnerable age and needs his counsel and advice.  He thinks she would be devastated if he were removed from Australia and that the chances of their meeting again would be almost nil.

18.     He said that he had renounced alcoholic beverages six years ago and had finally defeated his drug habit while in prison.  He had understood that drugs must be out of his life forever if he is to concentrate on his daughter and on his honest work.  He regrets his past actions and hopes to live an honest life in order to continue to be there for his daughter.

19.     He stated that he seeks an opportunity to prove that he is a man of decency and strong will and that he genuinely wishes to turn his life around.  He had been very young when he came to Australia and unfortunately had fallen in with a bad group.  By the time he realised it, it was too late.

20.     In his oral evidence Mr Mitiau added that he had not been raised by his real parents and that both his step-parents were now deceased.  His real mother is alive and living in the Cook Islands but he has little contact with her.

21.     He considers that his family consists of his daughter, who is currently living with her mother at Rose Bay, New South Wales.  He has no other family in the Cook Islands, but has two cousins in New Zealand with whom he has little contact.

22.     The applicant said that he regrets what he has done in the past.  Now aged 43, he fully accepts responsibility for his misdeeds, acknowledging that it had taken him some time to come to that realisation.  The proceedings to cancel his visa under s 501 had brought him to his senses.  He was hoping for a last chance to make something of himself.  He had always worked while in Australia, usually as a labourer, doing landscaping work or as a steel fixer in concrete pouring.  He would have no difficulty in obtaining work in the construction industry and would simply need to walk onto a site and apply for employment.

23.     He acknowledged the particulars of his criminal history as contained in Exhibits R1 and A1.  His first conviction was for a drug offence, a little over a year after his arrival.  At that time he was using marijuana and he stated that most of his convictions arose out of drug or alcohol abuse.

24.     He acknowledged that his employment record as set out by him in his personal details form was not correct.  He said it only mentioned two previous positions, when in fact he had always worked and had always paid tax.  He had last worked for Rio-Fix some three years ago, so in that respect also his employment history details were not correct.

25.     He told Ms McNeil that he had not undertaken any form of drug rehabilitation, explaining that he was not an everyday drug user but would only indulge perhaps once every three months or every three weeks or so.

26.     Reminded of the passage in his written statement in which he wrote “please understand that these crimes were committed invariably while in the clutches of a ferocious and ravaging drug habit”, when his “mental state was extremely unstable and [his] perceptions were distorted”, he expressed some incredulity that he had written that passage.  He explained rather enigmatically that “sometimes I just write things down” and that he was not a good writer.

27.     In his closing submissions, he repeated that he regretted his past actions and at 43 had decided that it was time to put such conduct behind him.  His daughter in Sydney is his only family and they are beginning to become closer to each other.

28.     Although not all his crimes had been drug-related, he would wish to undertake drug rehabilitation when released.  He did not think it would be good for him to return to New Zealand, having been here for 21 years.  He would like one more chance to make something of himself.

Relevant Law and Policy

29. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (a), as follows:

…

For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7); or

…

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

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

…

31.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

32.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Application of the Law and Findings of Fact

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

…

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

…

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

…

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

…

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

35.     In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(7), having been sentenced on 23 June 2006 to three years' imprisonment for robbery while armed with an offensive weapon.  There are no substantial mitigating circumstances.

36. I must therefore consider whether to exercise my discretion under s 501(2) to decide, nevertheless, whether not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

37.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

38.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraphs (f) and (n), crimes of violence against persons, and in paragraph (e), armed robbery.  Paragraph 2.8(a) requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

39.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

40.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(e) that armed robbery, and in paragraphs 2.6(f) and (n), crimes of violence against persons, are to be treated as very serious.  In this case, the applicant has been convicted of robbery while armed with an offensive weapon, assault and robbery, malicious wounding, and another occasion of assault.

41.     When sentencing him to three years' imprisonment for robbery while armed with an offensive weapon, Judge Walmsley SC noted that there were aggravating factors, as the applicant was on a bond at the time of the offences and that there was an element of vulnerability in relation to the victims.  His Honour noted that the circumstances would have been very frightening indeed for the victims of the offences, but took into account as mitigating factors his problems with addiction and stresses caused by his brother’s death.  Even taking those matters into account, his record must be viewed as very serious.

42.     The next issue for the tribunal to consider is the risk of recidivism.  In paragraph 2.10(b) the Direction notes that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour.  In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed.

43.     The applicant’s criminal history extends over a period of approximately a decade and includes offences committed while on good behaviour bonds and other orders.  Judge Walmsley noted that the armed robbery offences were committed for the purpose of obtaining money to buy heroin.  In his own written statement the applicant contended that all his offences had been committed while he was “in the clutches of a ferocious and ravaging drug habit” that he had now conquered, although he sought to retract that proposition at the hearing and he claimed to be only an occasional user of prohibited drugs.

44.     A condition of the good behaviour bond imposed upon him in September 1996 was that he should undertake rehabilitation for drug and alcohol addiction, but he has never undertaken any such program.  As Walmsley J noted, he had a good work record in prison, but apart from that, there is no evidence of rehabilitation.  The risk of recidivism in this case must be regarded as significant.

45.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

46.     Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

47.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”. General deterrence must be a factor in this case, although it is not a decisive one.

Expectations of the Australian Community

48.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

49.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).

50.     Again in Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held “that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community” (219 CLR at page 632).

51.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).

52.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at para 34).

53.     The respondent submitted that given the serious nature of the applicant’s criminal conduct, and the adverse effect it is likely to have had on his victims in the armed robbery cases, the community would expect that he not be permitted to remain in Australia.  That expectation would be reinforced by the long history of offending that the applicant began to accumulate soon after his arrival in Australia.  I accept those submissions and consider that this consideration should be given significant weight.

The Best Interests of the Child

54.     There is no child under 18 whose interest need to be considered under this heading.

Other considerations

55.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

56.     The applicant’s mother lives in the Cook Islands and he has two cousins in New Zealand, but does not have close contact with them.  He has no business or other links with Australia and there is nothing to indicate that his daughter, his ex-de facto or his current girlfriend Ms Carroll are dependent on him in any way or that they would suffer significant disruptions in their lives if the applicant’s visa were cancelled.  There is no evidence, written or oral, from the applicant’s daughter or her mother.

57.     He says his relationship with his daughter Taeva, aged 19, is becoming closer.  It is likely that she would suffer some emotional hardship if his visa were cancelled.  On the other hand, there would be nothing to prevent her from visiting him in New Zealand.  There is also no evidence to suggest that Ms Carroll or his ex-de facto, Gabrielle Lavara, would not be able to visit him in New Zealand also.

58.     The applicant appears to harbour some good intentions in relation to rehabilitation, but he has never undertaken any drug or alcohol rehabilitation courses although required to do so by the conditions of an earlier bond.  His conflicting evidence about the role of drug abuse in his offending behaviour raises questions about how well he has come to grips with his addiction problems and also suggests that so far he has failed to make any substantial progress towards rehabilitation.

59.     In my view the other considerations in this case are outweighed by the factors of community protection and expectations.  The decision under review is affirmed.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Date/s of Hearing:  1 November 2007
Date of Decision:  15 November 2007
Solicitor for the Respondent:             Bronwyn McNeil, Clayton Utz