Panapa (Migration)

[2020] AATA 1558

Panapa (Migration) [2020] AATA 1558 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ronald Laten Richard Whero Panapa

CASE NUMBER:  1816030

DIBP REFERENCE(S):  BCC2018/1296852

MEMBER:Kate Millar

DATE:1 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Special category (Temporary) Class TY Subclass 444 visa.

Statement made on 01 May 2020 at 12:44pm

CATCHWORDS              

MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – behaviour concern non-citizen – sentenced to imprisonment for periods totalling at least one year – applicant sentenced to imprisonment with leave to apply for home detention – application to parole board and sentence served as home detention – amendment to NZ Sentencing Act – established life and no convictions in Australia – family would remain in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 32(2)(a)(ii)

Migration Regulations 1994 (Cth), Schedule 2, Part 444

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Panapa is a citizen of New Zealand.  He has been in Australia for five years and returned to New Zealand in 2018 as his grandmother was ill.  On re-entering Australia, he was a refused a Special Category (Temporary) Class TY Subclass 44 visa because a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found his criminal history resulted in him not meeting the criteria for the visa.

2. Mr Panapa applied for a review of this decision and appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral February from his fiancée Ms Sheena Hodge. Mr Panapa was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

3. A requirement for the grant of a Subclass 444 visa is that Mr Panapa is not a behaviour concern non-citizen.  A person will be a behaviour concern non-citizen if she or she has been sentenced to imprisonment for period that add up to at least one year.  This issue in this case is whether this applies to Mr Panapa. 

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. To be granted a Special Category visa, Mr Panapa must meet the criteria in s.32 of the Act and Part 444 of Schedule 2 of the Migration Regulations 1994.

6. Section 32(2)(a)(ii) requires that for the grant of the visa, the person must not be a “behaviour concern non-citizen”.  As it applies in Mr Panapa’s circumstances, this is defined in section 5 of the Act as a non-citizen who:

   …

   (b)has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if: 

   (i)        any period concurrent with part of a longer period is disregarded; and 

   (ii)  any periods not disregarded that are concurrent with each other are treated as one period; 

   whether or not: 

   (iii)the crimes were of the same kind; or 

   (iv)  the crimes were committed at the same time; or 

   (v)  the convictions were at the same time; or 

   (vi)  the sentencings were at the same time; or 

   (vii)the periods were consecutive; or 

   ..

   where sentenced to imprisonment includes ordered to be confined in a corrective institution.

7. On 20 July 2007, Mr Panapa was convicted of driving while disqualified, third or subsequent offence and sentenced to imprisonment for 6 months with leave to apply for home detention.  Mr Panapa agreed he had been convicted of this offence, and that this was the sentence for this offence.

8. Mr Panapa’s representative said that on the day of the hearing he was advised that Mr Panapa served home detention rather than imprisonment, and it was submitted this therefore should not be included in the calculation of whether he had been sentenced to imprisonment for this period.  Mr Panapa was given time after the hearing to provide any further material in support of this contention. 

9. Prior to the hearing Mr Panapa provided an opinion from a barrister in New Zealand included that the sentence imposed on Mr Panapa was imposed before amendment to the Sentencing Act in 2007.  Under the sentencing provisions at the time, it is the opinion of the barrister that he was subject to a two tier process, firstly the Court determined when it sentenced Mr Panapa that he was a suitable candidate for home detention, then secondly it was incumbent on Mr Panapa to secure a suitable home detention address and to apply to the Parole Board to be released on home detention if he wished to do so. 

10. The Sentencing Act 2002 (New Zealand) was amended by s.44 of the Sentencing Amendment Act 2007 which commenced 1 October 2007, which is after Mr Panapa was sentenced.  The amendments allow a sentence of home detention to be imposed.  The Sentencing Act 2002, as it was at the time Mr Panapa was sentenced, did not allow for a person to be sentenced to home detention.  

11. After the hearing Mr Panapa provided a decision of the Parole Board of New Zealand of 12 September 2007.  The opening comments of the Parole Board in its decision are:

    Ronald Panapa appears before the Board today for it to consider whether or not he should serve his sentence of imprisonment by way of home detention

12. This confirms that the order of the Court was to impose a sentence of imprisonment, which is confinement in a corrective institution as defined in s.32.  That he was given leave to apply, and was granted, for home detention does not result in this definition not being met.  The Parole Board does not have the power to change the order of a court. 

13. In this case, Mr Panapa was not sentenced to home detention, he was sentenced to a term of imprisonment with leave to apply for home detention. Further action and an application was required from Mr Panapa before he could be released.

14. As the legislation relating to home detention was not in effect at this time, it is speculative whether he would have been sentenced to home detention.  The Tribunal finds he was, in fact, sentenced to a period of imprisonment for 6 months

15. Mr Panapa was sentenced to two periods of imprisonment each for 6 months.  These are period that add up to a period of one year.

16. The requirement that the sentence is “at least” one year, means that it is not less than, or at the minimum, or at the smallest amount. Mr Panapa has been convicted of two or more crimes and sentenced to imprisonment, for periods that add up to at least one year.

17. As a result, he does not meet s.32, and the decision under review must be affirmed.  The Tribunal does not have any discretion to disregard this provision or to consider Mr Panapa’s current circumstances. 

18. The Tribunal appreciates this is a difficult decision for Mr Panapa.  Legislation allowing a sentence of home detention commenced a matter of months after he was sentenced.  He has established himself in Australia over the last five years and says he has no convictions.  He says he has assisted volunteering for homeless people. His fiancée and 14-year-old daughter are in Australia, and his fiancée says she would remain in Australia if he is required to return to New Zealand as she does not want their daughter to go back to their family situation in New Zealand.  It is not apparent if he declared his criminal convictions in previous entries to Australia.  It is open for Mr Panapa to seek the intervention of the Minister under s.351 of the Act should he chose to do so. 

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Special category (Temporary) Class TY Subclass 444 visa.

    Kate Millar
    Senior Member