Peipi-Tepou and Minister for Immigration and Border Protection (Migration)
[2016] AATA 635
•24 August 2016
Peipi-Tepou and Minister for Immigration and Border Protection (Migration) [2016] AATA 635 (24 August 2016)
Division
GENERAL DIVISION
File Number
2016/1778
Re
Manu Peipi-Tepou
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 24 August 2016 Place Sydney The Tribunal affirms the decision under review.
...........................[sgd].............................................
Senior Member J F Toohey
CATCHWORDS
MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – prospects of rehabilitation – unacceptable risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 499, 500, 501(3A), 501CA(3),(4)
CASES
Graham v Minister for Immigration and Border Protection [2016] FCA 682
Roach v Minister for Immigration and Border Protection [2016] FCA 750
SECONDARY MATERIALS
Direction no. 65- Migration Act 1958- Direction under section 499 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Convention relating to the Status of Refugees (1951)
Protocol relating to the Status of Refugees (1967)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
International Covenant on Civil and Political Rights (1966)
Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (1989)
REASONS FOR DECISION
Senior Member J F Toohey
24 August 2016
Background
Mr Manu Peipi-Tepou arrived in Australia from New Zealand in May 2001, aged 35. He was granted a Special Category (Temporary) visa on arrival. He has remained in Australia since. This decision concerns the mandatory cancellation of his visa and whether that cancellation should be revoked.
On 22 May 2014, Mr Peipi-Tepou was convicted on charges of assault occasioning actual bodily harm in company of others, affray and common assault. He was sentenced to concurrent terms of 12 months imprisonment on the first two charges and six months on the third.
Section 501(3A) of the Migration Act 1958 (the Act) provides that the Minister for Immigration and Border Protection (the Minister) must cancel a person’s visa if satisfied that he or she does not pass the character test. A person does not pass the character test if he or she has a substantial criminal record: s 501(6).
For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more, or two or more terms of imprisonment where a total of those terms is 12 months or more: s 501(7). If sentences are to be served concurrently, the whole of each term is to be counted in working out the total term of imprisonment: s 501(7A).
The decision under review
On 22 January 2015, a delegate of the Minister cancelled Mr Peipi-Tepou’s visa on the ground that he did not pass the character test by reason of his substantial criminal record.
As soon as practicable after deciding to cancel a person’s visa, the Minister must give the person written notice of the decision and invite him or her to make representations about the revocation of the decision: s 501CA(3). The Minister may revoke the original decision if satisfied that the person passes the character test or if there is another reason why it should be revoked: s 501CA(4)(b).
On 13 February 2015, Mr Peipi-Tepou asked the Minister to revoke the cancellation of his visa. He gave the following reasons:
(i)he has never been sentenced to a term of “imprisonment” for 12 months or more; his longest non-parole period was nine months;
(ii)he has a close relationship with his brother and his brother’s family in Australia, and he has a son and two grandchildren in Australia; he has no children in New Zealand;
(iii)he has worked for “approximately 15 companies” in Australia.
On 28 January 2016, a delegate of the Minister wrote to Mr Peipi-Tepou to say that the Department of Immigration and Border Protection had received information which might be taken into account when deciding whether to revoke the cancellation of his visa. The information included a record of his criminal history in New Zealand, sentencing remarks of the court on 22 May 2014 and reports from the New South Wales Department of Corrective Services. The delegate invited Mr Peipi-Tepou to provide any comments he wished to make about the information.
In response, Mr Peipi-Tepou provided details of his family in New Zealand and Australia. He said he is not proud of his history in New Zealand, which he attributed to being young and rash, but said he left his past behind when he moved to Australia and has worked on becoming a responsible member of the community here. He expressed his regret at his recent offending and said he wanted to move on with his life.
On 30 March 2016, the delegate decided not to revoke the decision to cancel Mr Peipi-Tepou’s visa. Mr Peipi-Tepou seeks review of that decision.
Mr Peipi-Tepou’s record of offending
Police records from New Zealand show that, between May 1985 when he was aged 19, and September 2000, Mr Peipi-Tepou was convicted on two firearms offences, two counts of burglary, two counts of shoplifting, and indecently assaulting a female over 16. He received fines and, on the burglary charges, was sentenced to non-residential periodic detention for five months.
Between December 1988 and October 1999, Mr Peipi-Tepou was convicted of nine traffic offences including unlicensed driving, resisting a traffic officer and assaulting the officer in the execution of his duty, driving with blood alcohol exceeding the limit and driving while disqualified. He received fines and periods of non-residential periodic detention.
Mr Peipi-Tepou’s last conviction in New Zealand was in September 2000, eight months before he arrived in Australia. New South Wales police records show that, in May 2002, he was convicted of traffic offences including driving with mid-range of prescribed concentration of alcohol, and driving an unregistered and uninsured vehicle without a licence.
Between October 2002 and May 2008, Mr Peipi-Tepou appeared in court on seven occasions and was convicted on multiple charges including traffic offences, shoplifting, destroying or damaging property, intimidating a police officer in the execution of his duty and resisting or hindering a police officer.
In April 2009, Mr Peipi-Tepou was convicted of common assault, assault occasioning actual bodily harm, affray, destroy or damage property, and remain on enclosed land without lawful excuse. He was fined and ordered to perform community service. In September 2009, he was convicted of using offensive language near a public place or school, and remaining on land without lawful excuse. In November 2009, he was convicted of failing to appear in accordance with a bail undertaking and on two counts of common assault for which he received a suspended sentence of nine months imprisonment. In July 2012, he was convicted of being in possession of suspected stolen goods.
In May 2014, Mr Peipi-Tepou was convicted of assault occasioning actual bodily harm in the company of others, affray, common assault, in November 2013 and January 2014. He was also convicted of breaching an Apprehended Violence Order (Domestic) (AVO) in April 2014 while on bail for the earlier two offences. He was sentenced to 12 months imprisonment on the first two charges, six months on the second, and was placed on a good behaviour bond in relation to the AVO.
Mr Peipi-Tepou was released on parole after seven months but was taken into immigration detention when he failed to report. Giving evidence before the Tribunal, he said he was trying to help his disabled partner at the time, when she needed medical and housing assistance, and his mind was not on his parole.
Police facts sheets, sentencing remarks, and corrective service records
A police facts sheet in relation to the April 2009 convictions shows that Mr Peipi-Tepou assaulted staff at a liquor store and caused damage to property when he was refused service because of his level of intoxication. A facts sheet in relation to the November 2009 convictions shows that he responded aggressively, by punching a member of staff in a restaurant and threatening other staff, when they said they had run out of lids for takeaway containers. On both occasions he was heavily intoxicated.
When asked at the hearing about these offences, Mr Peipi-Tepou did not dispute the facts but maintained that he was not to blame on either occasion and, had the staff done what he had asked, he would have left without causing trouble. In relation to the restaurant incident, he considered there was fault “on both sides”.
The sentencing remarks on 22 May 2014 show that, on 5 November 2013, Mr Peipi-Tepou, in company with another man, “set upon” a 56-year old homeless man, whom they knew, while heavily affected by alcohol. After the co-offender punched the man to the ground, Mr Peipi-Tepou kicked him in the body and, when the man got up and walked away, they followed him and the co-offender punched him in the face, rendering him unconscious. The magistrate observed that, “to his credit”, Mr Peipi-Tepou “owed up to police”.
Giving evidence before the Tribunal about the assault of the homeless man, Mr Peipi-Tepou maintained that the victim had been slandering him, telling people that he had “ripped off” his house. When pressed, he conceded that the assault was “not really a good thing” but he maintained that he did not deserve what the victim had been saying about him. He acknowledged that he was heavily intoxicated at the time.
The sentencing remarks further show that, on 26 January 2014, while heavily intoxicated and on bail in relation to the earlier assault, Mr Peipi-Tepou took offence at what he described as “making sexual advances” and being “really sleazy” towards his partner. In response, he pulled the victim to the ground, kicked him in the back of the head at least twice and punched him once to the side of the head.
The magistrate noted Mr Peipi-Tepou’s long-standing “difficulty with” alcohol, methyl amphetamine and other drugs, and commented that his history indicated that he was “somebody who just has a problem with anger”.
According to a pre-sentence report prepared by the New South Wales Department of Corrective Services, Mr Peipi-Tepou accepted the police facts in the offences before the court but “appeared to minimise his responsibility” and appeared to apportion blame to the victim, who was his partner at the time, for his breach of the AVO. The report commented that he “appeared to demonstrate limited insight into the impact of his offending behaviour” and he was unsuitable for a community service order because of his “unresolved substance dependency”.
Reports from the immigration detention centre where Mr Peipi-Tepou is currently held document incidents in November 2015 and March 2016 of “Abusive/Aggressive Behaviour”. Mr Peipi-Tepou told the Tribunal he cannot remember the first incident and I accept that it was relatively minor and the report records that he “calmed down” afterwards.
Mr Peipi-Tepou agreed that he recalled the second incident in which he “became rude and aggressive” towards a nurse and was asked to leave the medical precinct. This incident also appears relatively minor but what is significant is Mr Peipi-Tepou’s claim that the nurse gave him “probable cause” because she was being evasive and not answering his question. When asked by the Tribunal, he confirmed that, by “probable cause”, he meant “good reasons”.
Does Mr Peipi-Tepou pass the character test?
Mr Peipi-Tepou submits that he should not be found to have failed to pass the character test because he has not been sentenced to 12 months or more imprisonment. He maintains that the length of his terms of imprisonment should be measured by reference to the non-parole periods and the time actually spent in gaol.
I reject that submission. A term of imprisonment for the purposes of the Act is that imposed by the court. It does not come to an end if an offender is released at the end of a non-parole period. Parole is conditional and, if granted, does not shorten the head sentence.
By reason of the sentence of 12 months imprisonment imposed by the court on 22 May 2015, Mr Peipi-Tepou has a substantial criminal record. It follows that he does not pass the character test. It remains to determine whether there is another reason why the cancellation of his visa should be revoked.
Is another reason why the original decision should be revoked?
The discretion to revoke the cancellation of a visa must be exercised in accordance with Direction no. 65 (the Direction) which came into effect on 22 December 2014. The Direction is made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: s 499(2A).
By way of general guidance, the preamble to the Direction affirms the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It states that the principles in the Direction are of “critical importance” in furthering that objective, and “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable”: subparagraph 6.2(1).
The principles affirm Australia’s “sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia”, noting that coming to, or remaining in Australia, is a privilege: subparagraph 6.3(1). Further, the principles state that the Australian community expects that the Government can and should cancel the visas of persons who commit serious crimes in Australia or elsewhere: subparagraph 6.3(2).
Part C of the Direction concerns revocation requests. It identifies the considerations relevant to determining whether to exercise the discretion to revoke a mandatory cancellation: subparagraph 13(2). The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Other considerations relevant to revocation requests are set out at subparagraph 14(1). These considerations include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of the impediments if removed.
Decision-makers must take into account the primary and other considerations relevant to the individual case. They may weigh in favour of, or against, revocation of a mandatory cancellation. Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations: paragraph 8.
Protection of the Australian community
When considering protection of the Australian community, decision-makers must have regard to the objectives of the Act and the principles in the preamble. They should give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should he or she commit further offences or engage in other serious conduct.
When considering the nature and seriousness of offending to date, decision-makers must have regard to factors including that violent crimes are viewed very seriously especially if committed against a vulnerable member of the community or government representatives or officials; the sentence imposed; and the frequency of offending and whether there is any trend of increasing seriousness: subparagraph 13.1.1.
The nature of harm to individuals or the Australian community of reoffending, and the likelihood of reoffending are relevant to considering whether the risk of repeated offending is unacceptable: subparagraph 13.1.2.
Mr Peipi-Tepou submits, and it is acknowledged on behalf of the Minister, that much of his offending is at the lower end of the scale. However, that cannot be said about the assaults for which he was convicted in 2009 and 2014. He submits that the fact that he was sentenced to 12 months imprisonment in 2014, being the “threshold” that triggers mandatory cancellation, indicates that the assault was at the lower end of seriousness. I do not accept that submission. A sentence of 12 months imprisonment is indicative of the seriousness of the offending and is not diminished by the fact that others may receive longer sentences for those or other offences.
Mr Peipi-Tepou has a history of nearly 30 years of regular offending. There are some periods of two or three years when he apparently did not offend, but the frequency and regularity of his offending overall indicates he has little regard for the law. In addition, COPS reports prepared by the New South Wales police which are before the Tribunal, document some twenty occasions on which Mr Peipi-Tepou has come to their attention, not necessarily as an offender, on some occasions as a victim. However, a common thread is his heavy intoxication on each occasion and his aggressive behaviour on many.
A COPS report dated 23 March police 2014 shows that, on that date, police attended after Mr Peipi-Tepou had assaulted his then partner. He was heavily intoxicated and the record shows he blamed her for what had happened. She declined to press charges, and he was not charged, but an AVO was obtained which he breached a short time later. Giving evidence before the Tribunal, Mr Peipi-Tepou maintained that his partner asked him to go to her house and I accept that may have been so. However, the report shows that he refused to leave when she asked him to.
Giving evidence before the Tribunal, Mr Peipi-Tepou maintained that he will “never ever” reoffend and, when pressed, he apologised for the assaults and said they were “not good”. However, considered in light of his repeated assertions that others were somehow to blame for the assaults, his apologies ring hollow.
The pre-sentence report prepared in May 2014 assessed Mr Peipi-Tepou as a “medium” risk of reoffending because of his alcohol and drug problems, emotional and personal issues, and his attitude and “orientation”. Given his long history of offending, that assessment would seem realistic, if not optimistic. The evidence indicates that he has a history of aggressive, sometimes violent, behaviour, often in response to what most people would regard as minor incidents. Nothing that is now before the Tribunal suggests that the risk of reoffending is reduced.
Mr Peipi-Tepou acknowledges that most of his offending occurred while he was heavily intoxicated, and that he has long-standing alcohol and drug problems. He maintains that he is committed to rehabilitation. He claims he has been trying to obtain help while in gaol but there was a six-month waiting list in prison and insufficient time for him to undertake a suitable program prison. He maintains he has been trying to get help while in immigration detention. He claims he asked officers but “nothing has come of it”. There is no evidence before the Tribunal about what programs might be available but his efforts seem half-hearted at best.
Mr Peipi-Tepou claims he has written to two rehabilitation centres in New South Wales but there is no evidence that he has been accepted by either or that he has any alternative plans for rehabilitation if released. Moreover, there is no evidence that he took any steps to deal with his problems in the month after his release from prison and before he was taken into immigration detention following breach of his parole. His genuine commitment to rehabilitation appears doubtful.
There is no evidence that Mr Peipi-Tepou will return to stable employment if he remains in Australia. A letter from an employer for whom he has worked as a full-time and casual labourer describes him as “respected as both a friend and worker” and notes that he would be “an asset to any employer”. The letter does not disclose any knowledge of Mr Peipi-Tepou’s offending and does not indicate that he will be again employed if released. In these circumstances, the letter does not assist him.
Mr Peipi-Tepou has been convicted of serious offences including assaults on vulnerable persons. Nothing in his evidence before the Tribunal indicated that his insight into his offending, or his willingness to take responsibility for his actions, have increased since the pre-sentence report was written. The risk that he will commit further serious offences, if allowed to remain in Australia, is at least medium. In my view, that level of risk is unacceptable and weighs heavily against revoking the cancellation.
The best interests of minor children in Australia
This consideration only applies to which a child who is, or would be, under 18 at the time of the decision. Relevant factors include the nature and duration of the relationship, the extent to which the person is likely to play a positive parental role in the future and the likely effect on the child of any separation: subparagraph13.2(4).
Mr Peipi-Tepou has three adult children, two of whom live overseas and with whom he has little contact. He has an adult son, now aged 30, who lives in Western Australia with his partner and three children and they are expecting a fourth shortly. Mr Peipi-Tepou has not seen his son or had physical contact since he was about three years old. He maintains that they speak regularly on the telephone. That claim appears somewhat at odds with a letter from his son which is in evidence but I accept they have been in contact. However, it is apparent that contact has been limited. There is no reason it could not be maintained if Mr Peipi-Tepou is in New Zealand.
The Minister acknowledges that it may be in the best interests of Mr Peipi-Tepou’s grandchildren that he remain in Australia but says that, given they have never met, the effect on them of separation must be limited. I accept that submission. Given that they live in another state, it is not clear that he would even have any physical contact with them. There is no reason they could not maintain a relationship by telephone or skype from New Zealand.
To the extent that this consideration weighs in favour of revoking the cancellation, it is outweighed by the unacceptable risk that Mr Peipi-Tepou will again commit serious offences and by the expectations of the Australian community.
Expectations of the Australian community
The Direction requires that decision-makers have due regard to the Government’s views about the expectations of the Australian community that non-citizens obey Australian law and that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa: subparagraph13.3(1).
Mr Peipi-Tepou came to Australia when he was 35 with a long history of offending in New Zealand. He was an adult. Within one year, he had committed an offence and has continued to offend since. He has shown little regard for the law and the law enforcement framework, and little inclination to change his behaviour.
For the Minister, it is acknowledged that Mr Peipi-Tepou has been employed at different times and, to this extent, has made a positive contribution to the Australian community. In my view, however, the nature and extent of his contribution has been limited and is outweighed by the negative aspects of his behaviour.
I am satisfied that the expectations of the Australian community would be that Mr Peipi-Tepou not be allowed to remain in Australia.
Other considerations
International non-refoulement obligations
Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. The obligations require that Australia not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
In his written request to have cancellation of his visa revoked, Mr Peipi-Tepou stated he has “issues in relation to gangs in NZ” and fears for his safety there. He provided no further information and has not provided any further information in support of this claim since.
There is no evidence before the Tribunal to support a finding that Mr Peipi-Tepou is at risk of a type of harm that would invoke Australia’s non-refoulement obligations.
Strength, nature and duration of ties
Mr Peipi-Tepou has lived in Australia for fifteen years. He has a brother in Melbourne who is currently in New Zealand caring for their elderly father; their mother died last year. He has two other brothers living overseas with whom he has limited contact. He has two adult daughters who live overseas and with whom he has limited contact. He has his son and grandchildren in Western Australia.
Taking into account Mr Peipi-Tepou’s history of offending which began shortly after arriving in Australia, that his ties to his family members in Australia appear tenuous at best, and that his ties by way of employment are not particularly strong, I find that nothing in this consideration weighs in favour of revocation.
Impact on Australian business interests
There is no evidence before the Tribunal to suggest that Mr Peipi-Tepou’s removal from Australia would have any impact on Australian business interests.
Impact on victims
While the impact on the victims of Mr Peipi-Tepou’s assaults can readily be imagined, there is no evidence about any impact before the Tribunal and so this is not a matter that weighs for or against revocation.
Extent of the impediments if removed
It is reasonable to conclude that Mr Peipi-Tepou may face some difficulty in adjusting to life in New Zealand again after an absence of fifteen years; any person would have to adjust. However, he grew up in New Zealand and there are no substantial language or cultural barriers that might inhibit his reintegration. Moreover, the social, medical and economic supports available to him in New Zealand would be much the same as in Australia.
Mr Peipi-Tepou gave evidence that he is awaiting treatment for a medical condition, the nature of which he did not wish to disclose. I accept that he requires medical treatment but there is no reason to think it would not be available to him in New Zealand.
I find that nothing in this consideration weighs against revocation.
I am satisfied that there are no other considerations relevant to deciding whether or not to revoke the cancellation of Mr Peipi-Tepou’s visa.
Federal Court judgments
Mr Peipi-Tepou was assisted at the hearing by a friend who submitted that, in Graham v Minister for Immigration and Border Protection [2016] FCA 682 and Roach v Minister for Immigration and Border Protection [2016] FCA 750, the Federal Court determined that s 501 of the Act is not valid. It was submitted that, as a consequence of these decisions, the cancellation of Mr Peipi-Tepou’s visa was not valid, and he and anyone else in detention following a cancellation should be released immediately.
That reading of the decisions is not correct. Although the applicant in each was successful, their visas were refused or cancelled under a different provision of the Act, and the power to revoke the decision was under different provisions of the Act (s 501(3), and s 501C). In any event, neither judgment found s 501 invalid. As a result, neither assists Mr Peipi-Tepou.
Conclusion
For the reasons above, I find that there is an unacceptable risk that Mr Peipi-Tepou will again commit serious offences if allowed to remain in Australia. I find that the expectations of the Australian community would be that he not be allowed to remain. To the extent, if at all, that the interests of his grandchildren would be adversely affected by his removal, I am not satisfied that their interests outweigh the first two considerations. There are no other considerations weighing in favour of revoking the cancellation of his visa.
For these reasons, I am not satisfied that Mr Peipi-Tepou passes the character test in the Act and nor am I satisfied that there is another reason why the original decision should be revoked.
I affirm the decision under review.
I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ......................[sgd]..................................................
Associate
Dated 24 August 2016
Date of hearing 10 August 2016 Applicant In person Solicitors for the Respondent Ms D Watson, Australian Government Solicitor
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