Otineru and Minister for Immigration and Citizenship

[2008] AATA 873

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 873

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4148

GENERAL ADMINISTRATIVE DIVISION        )

Re             Carlos OTINERU

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date1 October 2008

PlaceSydney

DecisionThe decision under review is affirmed.

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa ex – character test conceded – whether discretion should be exercised to cancel the applicant’s visa – applicant has substantial criminal record – community protection and expectations considered – best interests of the children considered – best interests of the children and other considerations are outweighed by the considerations of community protection and expectations in this case– decision under review is affirmed.

…

RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501, 501G

CITATIONS

Re Otineru and Minister for Immigration and Citizenship [2007] AATA 1939

Pomare v Minister for Immigration and Citizenship [2008] FCA 458

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

Green v Minister for Immigration and Citizenship [2008] FCA 125

R v Henry & Ors (1999) 46 NSWLR 346

Tien Hung Vu v R BC200604589

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

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

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91

Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575

Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443

Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145

…

OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

1 October 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Carlos Otineru was born in Samoa in March 1983 and is a citizen of New Zealand.  He first arrived in Australia on 26 September 1997 at the age of 14 and was granted a class TY, subclass 444 special category visa entitling him to remain indefinitely.

2.      On 21 February 2005, he was convicted of larceny and fined $300.  On 10 June 2005, he was sentenced at Burwood District Court to imprisonment for four years and nine months, with a non-parole of two years for aggravated breaking and entering and committing a serious indictable offence while armed.  On the same day he was sentenced to 18 months' imprisonment with a non-parole period of nine months for breaking and entering with intent to steal.

3. On 14 August 2007, he was notified of the decision to cancel his visa on the basis that he failed the character test under s 501 of the Migration Act 1958 (Cth) (the Act) and was faxed a notification of the cancellation on the same day.

4.      He applied to this tribunal for review of the cancellation decision on 24 August 2007.

5.      On 30 October 2007, the tribunal dismissed the application for want of jurisdiction on the basis that it was filed out of time and therefore not valid (Re Otineru and Minister for Immigration and Citizenship [2007] AATA 1939). At that hearing the applicant’s representative did not challenge the validity of the notice of intention to cancellation of his visa.

6.      Subsequently, this matter was identified as having been affected by the Federal Court of Australia decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, in which it was held that a notice of visa cancellation, giving this tribunal’s address for service as its post office box number rather than its street address, was invalid under s 501G(1) of the Act. Consequently, this application was remitted to the tribunal for reconsideration.

7.      At the hearing, Mr Darien Nagle of counsel appeared for the applicant, while Ms Tessa van Duyn, 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 A10, together with the other documents tendered by the parties at the hearing.  The applicant, together with and in his support, Mrs Lotosifa Otineru and Mr Maniti Otineru, the applicant’s parents, all gave oral evidence in person while the applicant’s girlfriend Ms Stacey Carter gave her evidence by telephone.

Issue

8. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is 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.

Relevant law and policy

9. 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 set out in 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);

…

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

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

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(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;

…

11.     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.

12. 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.

The applicant’s evidence

13.     At the hearing the applicant adopted his written statements dated c. 11 October 2007 and 21 July 2008 (Exhibit A12, pp30-31, 33).  In them he stated that after arriving in Australia in 1997 at the age of 14, he lived with his parents in Canberra and continued his schooling there.  He took an active part in rugby and progressed to a senior rank in the Canberra Vikings team.

14.     Unfortunately, as he matured, he became more susceptible to peer pressure in an effort to be accepted by his team mates: “I can truly say that peer pressure and gullibility lead [sic] me to crime and shortly thereafter I found myself in prison”.

15.     Over several years he had come to realise the detrimental effects of his conduct on the community and his family and sought to take full responsibility for his life.  He therefore enrolled in a variety of courses and programs geared towards curbing his past offending behaviour and setting him on a more positive path for the future.

16.     Since being detained at Villawood he had rekindled his close relationship with his family and wished to participate in the Australian community and contribute to it in a significant way.

17.     He was concerned that if returned to New Zealand he would have not immediate family to stay with and would not be familiar with the lifestyle there.

18.     Since being in Australia he had formed a relationship with Ms Stacey Carter and they had been in a de facto relationship for two years.  She and her family had expressed an interest in sponsoring him to live with them on his release.

19.     While in custody he had worked in the community as a works release inmate between January and May 2007.  If released he would have no difficulty in finding stable employment.

20.     He was remorseful for his offending behaviour and would attend relevant courses to help to deal with those behaviours.  With the support of Stacey, her family and friends, he would be able to better himself and begin a new life.

21.     In cross-examination, he acknowledged that he had committed the two breaking and entering offences after seeing the two women withdrawing money from their accounts, two days apart.

22.     He had also been fined $300 on conviction for larceny and at first said he did not know what that charge was about.  Later he said the matter was a long time ago and that it was not he who had committed the offence but he took the blame for it.  After repeating that he did not know what the charge was about, he opined that it stemmed from his removing money from an account (presumably owned by someone else).  It was in a shopping centre or mall and he guessed there had been cameras there.

23.     He had become involved in crime because of abusing alcohol and drugs, namely ecstasy, cocaine and cannabis.  He had undertaken drug and alcohol rehabilitation and anger management courses in jail and had not used drugs for four years.  The alcohol and violence prevention program had been a one-day course.

24.     As he did not want to be separated from his family again, he would not relapse.  He would be lost without them in New Zealand.

25.     After finishing school, he had been employed on construction sites doing floor tiling.  As he had been working full-time, he did not undertake any tertiary education or training.

26.     It was then pointed out that before the previous hearing he had stated that he did not know the whereabouts of his immediate family (G p39).  He replied that he had not told the truth on that occasion because he had not realised that his visa might be cancelled.  He had not tried to contact his family for six years, but he had known where they were all along.  He had now seen his parents and siblings again and in the last couple of months, had been seeing them every weekend.  He had not previously contacted them because he did not want them to visit him in jail.

27.     Besides his parents, he had two brothers aged 14 and one or two, and two sisters aged 12 (he thought) and seven.  He had met the two youngest when they came to see him at Villawood.  In New Zealand he had no family that he knew of and had never returned there.  He now wanted to rejoin his family and be part of it again.

28.     While in jail he had worked in the metal workshop, repairing car bumpers and similar items, for six to eight months, five days a week.

Applicant’s supporting witnesses

29.     Ms Stacey Carter of Ingleburn, New South Wales, adopted her two written statements (part Exhibit A12 pp25-28), the earlier of which stated that she had met the applicant in February 2000.  By May 2000 they had commenced a relationship, which ended in January 2001 when the applicant moved to Canberra.

30.     They nevertheless remained in touch and the relationship resumed in November 2005.  They now planned to marry and have a family.

31.     Visa cancellation would require her to choose between the applicant and her Australian family and friends.  She had discussed the applicant’s past offences with him regularly and believed he had not only learned from his mistakes but had become a more mature, respectful and kind man.

32.     In her letter of 14 July 2008, she wrote that while not seeking to minimise the objective seriousness of the applicant’s past conduct, she asked the tribunal to weigh the pain and hardship she and her family, and the applicant's family would sustain against the need to further punish him for past wrongs for which he had already served his imprisonment.

33.     In her oral evidence by telephone at the hearing, Ms Carter said that when the relationship resumed in 2005, the applicant was in jail.  She wrote letters to him and thought she would give the relationship another try.  She did not visit him in jail, as that was “not my thing”, but remained in contact through letters and daily telephone calls.  When he was moved to Villawood she began visiting him every week, although in the past two months she had been unable to maintain that frequency.

34.     She was aware of the nature of his crimes but believed anyone could be forgiven for one mistake.

35.     They had discussed what they would do if his visa were cancelled.  She would be faced with a hard decision but would probably move to New Zealand with him.  The actual decision would, however, depend on circumstances at the time.  Ms Carter added that she is not currently employed.

36.     Ms Carter’s mother, Mrs Kim Carter, wrote two letters of support, one undated and the other dated 15 July 2008 (part Exhibit A12).  She wrote that her daughter and the applicant have known each for seven years but have become close over the last two years.  He writes to her frequently and telephones every day.  She believes the relationship is genuine and is upset by the prospect of his deportation because her daughter would have to choose between him and her family.  She believed the applicant had learned his lesson and thought everyone is entitled to make a mistake in their life as long as they learn from it.

37.     The applicant’s mother Mrs Lotosifa Otineru adopted her two written statements dated 12 June 2008 and 14 July 2008 respectively (part Exhibit A12).

38.     Mrs Otineru stated that her son is from a large, close knit and proud family that stresses the importance of respect, humility and integrity.  The family endeavours to educate and guide the applicant to enrich his life and to enable him to develop as an individual.

39.     The family has strong family values that include uniting under difficult circumstances, giving generously to others and assisting the applicant to overcome obstacles.

40.     She believed that her son is remorseful about his transgressions but acknowledges that he was misled and easily influenced in his youth.  He has, however, matured and has accepted his shortcomings.

41.     The family would fully support him financially and assist him to obtain employment.  The family had suffered great pain and suffering and unbearable hardship as a result of his prolonged detention.  His removal would cause them further pain and hardship.

42.     In oral evidence, Mrs Otineru acknowledged that there had been no contact between her son and the family for six years, but communication had resumed towards Christmas 2007 and she had begun to visit him in the last two months about once a week, sometimes alone and sometimes with other family members.  The applicant had met his youngest sibling just recently.

43.     She acknowledged that his offences were “not very good”, but believed the applicant would not have committed them if he had been with her.

44.     Mrs Otineru said she has family in New Zealand, but the applicant does not know them.

45.     Mr Maniti Otineru, the applicant’s uncle and adoptive father, wrote (part Exhibit A12 p9) that as his father he felt the pain and suffering of his son.  He had also suffered pain and hardship every day with the constant threat that the applicant might be removed from Australia.  He could not imagine how he would ever cope with the hardship if that were to happen.

46.     In oral evidence Mr Otineru acknowledged that he had no contact with his son over a six-year period.  He did not know where his son was because he did not want his parents to know.

47.     Last year, however, he had telephoned Mr and Mrs Otineru and communication had resumed.  After that he saw him again for the first time early this year (2008) and had since visited him at Villawood each month, sometimes twice a month.

48.     Asked by Ms van Duyn if the relationship was a close one, Mr Otineru said that the applicant is his son.  He was a teenager when he committed his crimes and Mr Otineru had been unaware of what was happening.  He had tried to contact his son during the years of separation.

49.     The applicant’s younger siblings Shaun, Laila and Joanne also wrote letters of support (part Exhibit A12 pp12-14).  Shaun wished to express the hardship he had suffered so far as a result of his brother’s visa cancellation and the “unthinkable suffering and hardship I will suffer if my big brother Carlos Otineru was removed from Australia”.  Laila said her family would be ripped apart and that the applicant had been taken away for long enough.  Joanne wrote that she did not know much about him but would love to get to know him more.

50.     Other letters were received from the applicant’s aunt Aimalefoa Nelson and her husband Otto, his cousin Fogaupolu Maniti and from the Reverend Allan Filipaini, minister of St Andrew’s Congregational Church, Balmain, of with the applicant's parents are parishioners (part Exhibit A12).

Applicant’s submissions

51.     On behalf of the applicant Mr Nagle very properly conceded that the applicant does not pass the character test and further noted that he no longer pressed the claim (Exhibit A12, p7) that he had been denied procedural fairness in relation to cancellation of his visa.

52.     In relation to the issue of seriousness of the offences within Direction No 21, Mr Nagle submitted that while the offences were serious, they were committed within a short period and that the applicant had been influenced by drugs and alcohol.  When charged he had pleaded guilty to the breaking and entering offences, which was itself an indication of remorse and contrition.

53.     He had severed all ties with his family for a period, but there had now been a reconciliation and the relationship had been rekindled.

54.     The sentencing judge had noted that he had been gambling and using drugs in the period leading up to the offences, which were out of character, having regard to his earlier life.  He had previously been of good character and had good prospects of rehabilitation.

55.     Before the offences, Mr Nagle said, he had been involved in the community and had played football.  He had behaved well while in jail and had bettered himself.  He had taken control of his life and enrolled in courses that addressed the causes of his wrongdoing and gave him vocational skills.  He had also worked while in prison.  The alcohol and violence prevention course he had completed had been successful and he had no intention of reverting to drugs or alcohol abuse.

56.     While the risk of recidivism was not completely eliminated, it was low or very low, given the steps he had taken.  There was no need to protect the community by removing him.  The community would be satisfied that he had addressed the risk of re-offending, as was apparent from the fact that he had been granted parole at the earliest opportunity.  Community expectations would also be influenced by his attempts to rectify his behaviour.

57.     The applicant has no children, but had built the start of a relationship with his younger siblings and his removal would have an impact on them.  His mother would be distressed and the children would be affected by her grief.

58.     As regards other considerations, he had rekindled his relationship with his family, who are all Australian citizens.  He had few ties with New Zealand, having been here since the age of 14.

59.     His relationship with Stacey Carter was close and was maintained by telephone.  She is an Australian citizen and hardship would be caused to her if the relationship ended of if she had to move to New Zealand.  Her mother had said that the applicant's removal would have an impact on her own family.

60.     The applicant comes from a close, church-going family that wants him to be part of it.  They had not previously known where he was because he was embarrassed to have them visit him in jail, which was itself an indication of contrition.  The relationship is now growing.

61.     While the respondent argued that his rehabilitation efforts had been undertaken in the controlled environment of custody, he had been of good character before the offences.  He had taken steps to become that person again and to be a hardworking citizen of good conduct.  If released, he has a home and family to go to and a community where he would find support.  He was not sure what he would do in New Zealand.  The applicant had not previously been warned about the possibility of visa cancellation.

Application of the Law and Findings of Fact

62. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).

63. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or 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.

…

64.     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:

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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.

…

65.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (n), crimes involving violence or the threat of it, which are to be treated as of special concern.  Also to be considered is the repugnance of the crime, a category including crimes involving violence against defenceless persons such as the elderly (para 2.7(b)).  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

66.     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

67.     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(f) that crimes of violence against persons are to be treated as very serious.  In this case, the applicant was convicted of the offence of breaking and entering with intent to commit a serious indictable offence while armed, committed on 18 January 2005 at Belmore, New South Wales, when the applicant broke into and entered the home of Ms Isabel Davies.  Ms Davies had been woken by the applicant’s presence in her bedroom.  When she shone a torch at him, he said to her, “Where’s the money, it’s in a blue bag?”  Charteris J continued:

…  The victim replied “I haven’t got any”, to which the offender said “You must have, in an envelope”.  The victim tried to delay saying anything further hoping the offender would then leave, but he said to her “If you don’t give me money I’ll kill you”.

Ms Davies got out of bed and was standing in the bedroom.  The offender approached her and put his hand around her throat whilst holding a screwdriver, some fifteen centimetres in length, against her throat or neck.  The offender said “I’ll kill you”, to which Ms Davies replied “If you let me go I’ll give you some money”.  She was then released, she walked to a linen press where she removed $500 in cash in $50 from under a set of towels.  The funds were then given to the offender who said “You must have more than that, it must be in an envelope”.  The victim said that she had no more money.  The offender then walked towards the back of the premises and left by the back door (G 78).

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Further inquiries led the police to learn that Ms Davies had been to the Commonwealth Bank at Belmore the day prior to this offence.  She had withdrawn $600 in cash, or thereabouts, in $50 notes.  The police then accessed surveillance footage from the bank and it detected the presence of the victim withdrawing the money from the bank, but also the presence of the offender at the bank.  The video is said to show the offender observing Ms Davies with a blue bag and placing the cash she had withdrawn in a distinctive envelope which she placed in that bag.  On the video the offender is show to watch the victim leave the bank.

The offender was recognised by police from the video as being involved in an unrelated matter which was also recorded on the closed circuit television.  The police made some inquiries in relation to that matter which identified the accused by name and also identified his residential address.  On 21 January he was arrested in relation to that unrelated matter.  In the course of his charging with that matter he was fingerprinted.  The police now had access to his fingerprints.  When compared to the fingerprints detected at the scene of the break-in at Ms Davies’ home the fingerprints of the accused were shown to be a match to those taken from the window that had been forced.

The offender was spoken to and cautioned.  He took part in a recorded interview with police where he made not admission to this offence.  He has pleaded guilty however to it and it is conceded he pleaded guilty at the earliest available opportunity (G pp79-80).

…

68.     The second offence was committed on 20 January 2005 and once again the victim was an elderly woman aged 84, Ms Merle Parker.  The applicant broke and entered her house during the night but apparently did not find any money (G pp84-85).

69.     In addition to those two offences, the applicant was convicted on 21 February 2005 and fined $300 for larceny.  He claimed not to know anything about that offence but also said he had taken the blame for an offence committed by another because he had apparently been caught on camera.  It does appear that he was detected on video in the bank when Mrs Davies was withdrawing her money (G p80).

70.     These were planned and organised offences (G pp81, 85) that can only be viewed as very serious.

71.     The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)).  They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).

72.     Charteris J took into account that the applicant had been abusing alcohol and drugs in the period leading up to the offences and was also gambling and losing money.  He thought the offender was motivated by greed (G p81).

73.     His Honour noted that “the offender is sorry for what he did.  He is also very sorry for the fact that he has been caught I assume.  He does have good prospects of rehabilitation because he was only aged at 21 years at the time of these offences” (G pp85-86).  He had no previous convictions and had previously been of good character and in light of his earlier life the offences were very much out of character.

74.     I take those matters into account in relation to the applicant’s criminal record as a whole.  Drug addiction is not a mitigating factor in sentencing (R v Henry & Ors (1999) 46 NSWLR 346 at 382-395 per Spiegelman CJ). It may, however, be “pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case” (at p382; see also Tien Hung Vu v R [2006] NSWCCA 188; BC200604589 at paras 59-64). It is appropriate to apply the same principles when exercising the discretion in s 501.

75.     The applicant in part attributed his offending to peer pressure when he was a successful footballer with the Canberra Vikings.  Falling in with the wrong group is a standard basis for a claim for mitigation, and there is often all too much truth in it, but there is a limit to how far it can explain premeditated wrongdoing as despicable as that perpetrated by the applicant.  Besides, organised sporting activity is normally regarded as one of the better environments for keeping susceptible young males out of serious mischief.

76.     The next issue for the tribunal to consider is the risk of recidivism.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). The applicant’s counsel acknowledged that the risk of recidivism could not be entirely eliminated but referred to his previous good character, his good conduct in jail, his enrolment in appropriate courses, his work while in jail, and Charteris J’s assessment. He submitted that the risk of recidivism was low or very low.

77.     There is no pre-release report or similar evidence before the tribunal.

78.     I must bear in mind, however, this tribunal’s observations in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132-N133:

…

The seriousness of the crime is an important consideration.  The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.

…

… even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.  …

…

79.     The Federal Court has held that a real risk of recidivism is one that is not farfetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198.

80.     Given the seriousness of the applicant’s record, and especially the offence against Ms Davies (which Ms van Duyn rightly described as “heinous”), and the fact that the applicant’s claims of rehabilitation have yet to be put to the test in the wider community, one must conclude that the risk of recidivism, although not great, does carry a potential risk of serious harm to the community.

81.     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.  As Spigelman CJ has said, “General deterrence always operates at the margin ….  However, some people will be deterred”: Henry at 386. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be 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.

82.     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.

83.     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”.

84.     While deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it must nevertheless be taken into account and given some weight.

Expectations of the Australian Community

85.     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.

…

86.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  Many reasons for that have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

87.     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).

88.     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 to be imposed on them (at p658).

89.     In this context these comments of the tribunal in Re Stone should be borne in mind:

…

The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia.  … (at N132).

…

90.     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 [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

91.     While most community members would take into account the fact that the applicant has been in Australia since the age of 14, they would give greater weight to the repugnancy of his offences, which involved planned and premeditated targeting of elderly women who were living on their own and threatening one of his victims with a gruesome death.

92.     Charteris J considered that the experience would have been truly terrifying and added that it would be expected that Ms Davies would have “suffered considerable emotional trauma and that would adversely impact on her capacity to lead her normal life, probably for many years if not permanently” (G p80).

93.     In my view, the community on balance would expect that the visa of a person with such a record, whose rehabilitation has yet to be put to the test in the wider community, should be cancelled.

The Best Interests of the Child

94.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

95.     The applicant has no children, but has four younger siblings aged between two and 14.  Until 2008, there had been no contact with them for approximately six years.  At the time he filled in his personal details form on 31 May 2007, and at the time of his interview on 3 July 2007, he was unaware of the very existence of his two younger siblings, aged seven and two (G pp39, 61).

96.     He did not meet the youngest until this year and his sister Joanne, aged seven, wrote, “I don’t know much about him but I will love to get to know him more …”.  As a result of the applicant’s own decision to break contact with his family he has been separated from his siblings for much or all of their lives.  The relationship between the applicant and his siblings is thus not a close one and in the case of the two youngest it is virtually non-existent.

97.     The children are living with both their parents and there is nothing to suggest that their living conditions are anything less than satisfactory.  Although the applicant has had little involvement in their lives, they would presumably experience disappointment and distress if he were to return to New Zealand.  To that extent their interests weigh against visa cancellation, although not in a substantial way.

Other considerations

98.     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.

99.     The applicant has no business or similar ties to the Australian community that would be disrupted by his repatriation.

100.   He reports having one aunt or uncle and three cousins living in Australia and more than 10 aunts or uncles and cousins, as well as all four grandparents, living overseas, presumably in New Zealand or Samoa (G p39).  Among them are some relatives on his mother’s side living in New Zealand, but he has never met them.  At the time of his interview on 3 July 2007, he had not had any contact with his parents in over six years, having left home when he was 18 (G p61).  He explained at the hearing that he had not wanted his parents to know where he was because he would be embarrassed if they were to visit him in jail.

101.   As he has been in jail or in Villawood since January 2005, however, it is clear that communication ceased about four years before his imprisonment.  Charteris J noted that when he was living in Canberra with his uncle (and adoptive father) he had a falling out with his uncle and went to live with his then girlfriend, Ms Ruta Solofuti.  In October 2004 he moved with his girlfriend’s family from Canberra to Belmore.  He had no other family in Australia (G pp77, 81).

102.   It is apparent from his mother’s evidence and his own that he made no attempt to contact his family until close to Christmas 2007, or in other words after this tribunal had dismissed his application for want of jurisdiction and he ostensibly faced imminent removal to New Zealand.

103.   Mr Maniti Otineru was not prepared to say that the relationship was a close one, answering only that the applicant was his son.  It is clear that the applicant’s mother would, however, be genuinely distressed if the applicant were returned to New Zealand, even though she lived without knowledge of his whereabouts for over six years.

104.   Ms Stacey Carter would, as she said at the hearing, be faced with a hard decision if the decision under review were affirmed.  She would probably move to New Zealand with him, but her actual decision would depend on circumstances at the time.  If she were to relocate, there would of course be no separation, and even though she has lived in Australia all her life she would not have to undergo any substantial cultural adjustments (see Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91 at [91]; Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575 at [72]).

105.   Her mother thought she would be in a position of having to choose between the applicant and her family, but that is a false dichotomy.  Many Australian families have members living in New Zealand, and vice versa, and experience no insuperable difficulties in maintaining contact through visits and modern communications.

106.   Ms Carter was aware of the applicant’s criminal convictions when she resumed the relationship in 2005, as he was in jail at the time.  Any hardship that she would face is thus to be given relatively less weight (see Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at [35]; Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 at [46]).

107.   The applicant has not met his New Zealand relatives on his mother’s side, but he has marketable employment skills that should help him to find employment and become established.

108.   Ms Carter and the applicant's family in Australia would experience some emotional hardship if the applicant were repatriated.  That factor, however, is normally to be given less weight than the primary considerations of community protection and expectations, which outweigh the best interests of the child and the other considerations in this case.

109.   The decision under review is affirmed.

I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ……………[sgd]……………………………………….

Renee Wallace, Associate

Date/s of Hearing:  11 September 2008
Date of Decision:  1 October 2008
Counsel for the Applicant:                 Mr D Nagle
Solicitor for the Respondent:             Ms T van Duyn, Clayton Utz