PQVB and Minister for Immigration and Citizenship
[2013] AATA 288
•10 May 2013
[2013] AATA 288
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0917
Re
PQVB
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 10 May 2013 Place Sydney The decision under review is affirmed.
..[Sgd]
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION – Visa cancellation – character grounds – substantial criminal record – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 501(2), (6), (7)
CASES
Ropiha v Minister for Immigration and Citizenship [2012] AATA 689
SECONDARY MATERIALS
Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
Ms N Bell, Senior Member
PQVB is a citizen of Samoa and of New Zealand, born on 13 January, 1964. PQVB arrived in Australia on 27 May 2000 on a Special Category Temporary visa. He was 36 years old. PQVB is now imprisoned and serving the last part of an eight year sentence. He has nine children. On 23 September 2011 the Minister decided to cancel his visa on the grounds that he did not satisfy the character test set out in section 501 of the Migration Act 1958.
Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that PQVB was sentenced to a term of imprisonment greater than 12 months. It therefore follows that he does not pass the character test.
The discretion of the Minister to cancel PQVB’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction 44 and came into effect on 28 July 2012 and varies significantly from the previous direction in that it adds, to a range of primary and “other” considerations in the exercise of the discretion, a set of principles expressed to “provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501”. The principles are:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are
considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction then sets out a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations in the Direction in respect of visa holders are:
Primary considerations - visa holders
(1) In deciding whether to cancel a person's visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person's ties to Australia;
(c)The best interests of minor children in Australia;
(d)Whether Australia has international non-refoulement obligations to the person.
These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.
PRIMARY CONSIDERATIONS
The primary consideration most relevant to PQVB’s circumstances, given his convictions for violent and sexual crimes, is the protection of the Australian community. The other primary considerations relevant to PQVB’s circumstances are the strength, duration and nature of his ties to Australia and the best interests of his children.
Protection of the Australian Community
The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the nature and seriousness of the person's conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
PQVB has the following convictions in Australia:
Offence Date of Conviction Sentence Indecent treatment of child under 16 years of age – lineal Descendant/Guardian/Carer; and
Assault occasioning bodily harm while armed
1 April 2005 On all charges: Imprisonment for 9 months.
Sentence suspended for 5 years
Contravening apprehended domestic violence order 30 September 2005 Without conviction. Released on entering good behaviour bond for 18 months Contravening apprehended domestic violence order
12 April 2006 - Common assault
12 April 2006 - Aggravated sexual assault – Victim under 16 years of age (1 charge)
20 May 2006 - Aggravated sexual assault – Victim under 16 years of age (2 charges)
23 May 2006 - Aggravated indecent assault – Victim under 16 years of age (3 charges)
15 June 2007 3 months imprisonment
3 months imprisonment
8 years imprisonment, with a non-parole period of 5 years
On each charge: Imprisonment for 4 years
On each charge: Imprisonment for 12 months
He also has the following convictions in New Zealand:
Offence Date of Conviction Sentence 11 November 1995 - Male Assaults Female (Manually) 15 November 1995 Supervision by Community Corrections – 6 months 13 June 1991 - Male Assaults Female (Manually) 13 June 1991 Community service – 100 hours 9 July 1990 - Traffic Conviction: Never held a Drivers Licence 9 July 1990 Fine $75
The remarks of Flannery J on sentencing reflect the seriousness of PQVB’s last offences. Her Honour described the circumstances as follows.
As for the offences that occurred on 12 April 2006:
The offender approached her [the victim] and had a conversation with her in which he told her she was in trouble for leaving home. The victim started to run towards home and the offender chased after her and punched her in the head.
As for the offences that occurred five weeks later:
…The offender then forced the victim to walk towards the Chipping Norton Lake in Lansvale. At the lake he forced her to take off her clothes. He then began kissing her and fondling her breasts. He then put his penis in her vagina and had sexual intercourse with her. Throughout the offence, she was crying.
He [the offender] told her [the victim] to go into his bedroom and once there he pushed her onto the bed. She started to cry. She took off her clothes when told to do so and the offender began kissing her, feeling her breasts and sucking her nipples. He then performed cunnillingus on her. He then put his penis inside her vagina and had sexual intercourse with her until he ejaculated.
As for the aggravated sexual assault three days after that:
…the offender asked her [the victim] to go for a drive with him. He drove her to the Chipping Norton lake in Lansvale. There he told her to get into the back seat and he began kissing her and feeling her breasts. He then told her to take her clothes off. He then put his penis in her vagina and had sexual intercourse with her until he ejaculated.
This record of convictions demonstrates a pattern of increasing seriousness from 1995 to PQVB’s last conviction in 2006. He has been imprisoned since 2006. His offences are, on any view, extremely serious. The majority of them were perpetrated on a minor – his daughter. I note the particular mention, in the second principle in Direction 55, of crimes “of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled” and the statement that a person who has committed such crimes should generally expect to forfeit the right to remain in Australia.
I also note that PQVB’s most recent offences were committed when he was in breach of an apprehended violence order and subject to a suspended sentence. This goes to the seriousness of the offences and to the likelihood of his reoffending.
PQVB demonstrated little insight into the impact of his offences on his victim and no awareness of what might be the continuing impact on her. He agreed that he was angry with his daughter and wanted to hurt or punish her. He agreed that he was excessively stern with his children, that he was violent to them and that they feared him. He said they are not frightened of him now because he has been away for so long and they can see he has changed. He said he does not know if his daughter is frightened of him.
He anticipated there would be no difficulty for his daughter were he to be released into the Australian community. He said he aims to be close to her siblings. The evidence of two of PQVB’s sons and a friend of the family was that his daughter is very close to her siblings. She has had no contact with PQVB since he was imprisoned in 2005.
The records of the NSW Department of Corrective Services show that PQVB was offered a place in a sexual offenders’ rehabilitation course in June 2012 and he refused the offer. PQVB’s evidence was that he refused the offer because he had been on a waiting list for the course for two years, it would involve a move to another jail and he was happy with the job he had been given in his current jail, and that he was going to be returned to New Zealand anyway. He said he has now changed his mind and wants to do the course because he wants to leave prison. When pressed, he said he also wants to understand why he offended.
PQVB said he has learned from his mistakes and he has brought shame and embarrassment on his family. He said it will not happen again. When I asked PQVB what had changed for him and in him, he said he is “angry about being in this place and separated from my family; it is not a place for me”. He said he wants to talk to his daughter and his other children and he wants a chance to stay in Australia. Later, he talked about his son who wants to be a professional football player and who needs his support. He noted that his other sons also play football but have not done so well at it since he has been in jail.
I note that in June 2012, the month after PQVB’s non parole period expired, the Probation and Parole Service recommended against release for PQVB. The report referred to PQVB’s lack of insight into his offending behaviour and his lack of community based support. At that stage he was still on a waiting list for a sex offender program. The report noted that any release on parole should be subject to a condition that he not be in the company of any person under the age of 16 unless accompanied by a responsible adult.
In a report of 20 March 2013, the Probation and Parole Service said:
The inmate has not completed any offence targeted programs during his incarceration, which is a concern given his untreated status and that he has been convicted of sexual offences in both NSW and QLD.
Whilst the inmate expressed shame and regret in relation to his offending, his initial refusal to accept a treatment officer [sic]in the custody based CORE Moderate Sex Offender Program is of concern and in particular his reasoning that the completion would not change his immigration status. This may provide insight into his genuine desire to address his offending behaviour. His current willingness to participate may be in part due to the above mentioned regression of classification.
Completion of the custody based CORE Moderate Sex Offender program is this Service’s preferred program pathway for the inmate to address his sex offending behaviour and this pathway is supported by the Forensic Psychology Service. It is unknown at this stage when the inmate will receive a further offer for program participation.
As such release to parole is not recommended at this stage.
Both reports applied the standardised risk/needs assessment instrument and noted a result, without dynamic factors, of low to medium risk of reoffending. It was noted in both reports that, according to Service guidelines, PQVB would be supervised at medium to high risk level.
I consider that PQVB’s offences are extremely serious and that, notwithstanding his renewed intention to participate in a sex offenders’ program and his acknowledgement of his wrongdoing, there is little evidence of rehabilitation. He poses a significant risk to the community and, in particular, to minors. This risk is unacceptable.
This consideration weighs very heavily in favour of cancellation of his visa.
Strength, duration and nature of the ties to Australia
PQVB was 36 years old when he arrived in Australia and he commenced to offend just three years after his arrival.
He has nine children in Australia. He is separated from the children’s mother and she has commenced a relationship with another man. He has not had contact with her for five years. His contact with his children has been mainly by telephone, although his older sons have visited him in jail at times. It was difficult to ascertain the frequency and regularity of their visits, but records indicate there have been long periods where no visits took place and other times when visits occurred on a monthly or twice monthly basis. It appears that, at least in more recent times, he has daily telephone contact with some of his children.
PQVB provided a statement by a former neighbour to whom the family is well known. However, this gentleman did not assert a close friendship with PQVB. Rather, he takes an interest in the children and provides assistance, support, food and accommodation to some of them. He did allow that he would accommodate PQVB on his release. However, he did not indicate that it would be a long term arrangement.
PQVB said he has a brother and eight cousins living in Australia.
PQVB said that his son has told him that his employer would provide work to PQVB on his release. However, he provided no evidence from the employer to that effect.
PQVB has been incarcerated for all but five of his 12 years in Australia. He was a non-offender for only three of those years. His positive contribution to the Australian community is very limited.
Notwithstanding the large number of children he has in Australia, his absence from his children’s lives and his early offending after arrival in Australia mean that this consideration does not weigh in PQVB’s favour.
Best interests of the child
PQVB has three children who are still in their minority; they are aged 14, 12 and 11 years. None of them has visited PQVB in the seven years he has been in jail.
PQVB’s 14 year old son gave evidence to the Tribunal. He said he currently lives in a garden flat with two of his brothers, aged 24 and 18. The flat is owned by and attached to the house of the family friend referred to above. PQVB’s son said his brothers and the family friend look after him and support him. The evidence of the family friend was that during the school week this child stays with a Samoan family close to his school. The friend said that family loves the child and takes very good care of him.
PQVB’s 14 year old son said he speaks to his father on the telephone an average of three times per week. He said he misses him notwithstanding that he has not seen him for seven years.
He said he is close to his brothers and sisters, including the sister who was the victim of PQVB’s offences. He said he sees her and her husband and children twice per week.
The family’s friend, a professional consultant who lives alone, said he knows the family very well since they moved to Sydney from Townsville eight years ago with no furniture and old broken down cars. He said he helped them and allowed the children to use his pool. He described himself as a mentor to the children and as a kind of father to them. He said the two youngest children are with their mother in Townsville and two of the older boys and the 14 year old child live rent free in his garden flat. He said their mother has a new partner who is “a bit of an alcoholic” who tries and fails to get work, but that the children say they have no problem with him.
He said he provides food, encouragement and money to the children and that he works in consultation with their mother with whom he is in frequent contact. He said he encourages them in relation to school and study and the children look on him as a father figure. He said he takes them to football games and that there they can see their friends and community.
The family friend said he knew PQVB for one year before he went to jail. He has not visited him there but he said he speaks to PQVB every day on the phone. He said he only saw him lose his temper with the children once.
The friend said PQVB’s daughter who was the victim of his offences visits her brothers at the flat every weekend with her husband and children. He said she is a lovely girl who has a very good relationship with her siblings. He said the family loves being in Sydney together.
He said that if PQVB is released he could live with him so as to get on his feet and be with his family.
PQVB’s 23 year old son also gave evidence to the Tribunal. He said he visits his father every month and talks to him on the phone every day. He said his younger brothers also talk to their father every day.
He said he suffered from his father’s absence and still misses him. He was 16 when his father went to jail. He does not want his younger brothers to suffer in the same way. He said that when his father went away he began to miss school, drink and get into trouble.
He said he is aware of the circumstances of his father’s offences and knows that his sister has not talked to their father for five years. He said she is very close to him and to her other siblings, but it would not upset her to spend less time with her family if her father is released and is near his other children.
He said he and other siblings had lived with the family friend at various times. He agreed he is a good role model but said he is not a father figure.
PQVB’s minor children, now aged 11, 12 and 14, were aged four, five and seven years when he went to jail. They have had only telephone contact with him since then.
PQVB agrees that he was violent with his children when they disobeyed him. He asserts that he has changed, but his last violent act has kept him apart from his children, he has undergone no rehabilitative program and his contended resolve has had no chance to be tested.
There is also the question of the children’s relationship with their sister who was the victim of PQVB’s offending. I heard evidence of her likely attitude to his release into the Australian community and his intention to be near his family to the effect that she will not mind having to remove herself to at least some extent from her siblings. I find this evidence difficult to accept in the face of other evidence that she is very close to her siblings. In any event, her removal from contact with her minor siblings would not be in their interests. Nor would it be in the interests of her own minor children to be removed from contact with her family.
I am also mindful of the parole condition foreshadowed by the Probation and Parole Service that PQVB not have unsupervised contact with children under 16. Such a condition would obviously impact on his ability to live with and see his minor children were he to be released into the Australian community.
I accept that the children have said that they miss their father, but there is no reason why the restricted contact they have had with him over the last seven years could not be continued by telephone from New Zealand or from Samoa. I am conscious of PQVB’s admitted violence towards his children and his extreme behavior towards his daughter. He has undergone no rehabilitative program and appears to have no insight into the effect of his actions on his child. There may be risk to his children if he were to be released into the Australian community. His children are now cared for by others and by each other. The family friend provides PQVB’s 14 year old son with support, accommodation, food, encouragement and good role modeling. He also has the support of another Samoan family during school weeks. The impact of PQVB’s absence has been ameliorated by this and by the children’s mother’s association with another man.
I consider this consideration weighs only slightly against cancellation.
OTHER CONSIDERATIONS
Effect on Immediate Family
PQVB’s immediate family’s current relationship with him is largely by telephone. Only his older sons have visited him in jail. If PQVB is in New Zealand or Samoa he could maintain the same telephone relationship with his children and those of them who have visited him over the years, and others, could also visit him overseas.
His family has not been dependent on PQVB for financial support for seven years. He has not had contact with the children’s mother or with his daughter for five years.
This consideration only slightly favours non-cancellation of his visa.
Impact on Australian Business Interests
There is no evidence of any impact on Australian business interests.
Impact on the Community
There is no direct evidence of the likely impact on PQVB’s daughter, the victim of his offending, were he to be released into the Australian community. However, PQVB has said that, if so released, he would wish to be close to his children. He said his daughter has not spoken to him for five or six years and he does not know whether she would be willing to have contact with him again. He said he does not know if she is frightened of him. He said that if she doesn’t wish to have contact with him then that would be “alright”. His opinion was that if he were to have contact with the other children there would be no problem for his daughter. He said that if she doesn’t want to see her siblings then that is “up to her”. This seemed an uncaring approach at best. It was echoed by PQVB’s 23 year old son who gave evidence that it would not upset PQVB’s daughter to spend less time with her siblings if her father was around them.
All evidence pointed to PQVB’s daughter being very close to her siblings. It is hard to imagine that she would not be adversely affected if she could not see them as much as she does now.
This consideration weighs in favour of cancellation.
Impediments to re-establishment and Basic Living Standards
PQVB gave no evidence of ill health or adverse age related factors.
He gave no evidence of language or social barriers in either New Zealand or Samoa, although he did say that his family in Samoa does not like what he has done and so he could not join them there.
PQVB said he has a brother in New Zealand and would stay with him there but he has heard that his brother is moving to Australia. He said his sister is moving to Samoa. PQVB said he does not know where in New Zealand he would live.
It appears that PQVB would have little or no social support in New Zealand or Samoa but there is no apparent impediment to employment or government support in either country as far as it is generally available.
This consideration is neutral.
THE BALANCE OF CONSIDERATIONS
Of the primary considerations, the protection of the Australian community weighs heavily in favour of cancellation of PQVB’s visa, the strength, duration and nature of his ties to Australia weigh slightly in favour of cancellation and the best interests of his three minor children weigh slightly against it.
Of the other considerations, only the effect on his immediate family weighs slightly against cancellation. I consider this in light of the possible effect on his daughter, the victim of his offending.
PQVB asked me to have regard to the decision of this Tribunal in Ropiha v Minister for Immigration and Citizenship [2012] AATA 689. The criminal activity in that case was not of a violent nature and did not involve vulnerable members of the community, Ropiha had arrived in Australia at a very early age, he had never directed his anger at his children and was considered a good father, and he had maintained close relationships with his minor children through visits while he was detained. This is in contrast to PQVB’s circumstances of extremely serious offending, a history of violence against his children, arrival in Australia at the age of 36, and a solely telephone based relationship with his minor children for the past seven years.
On balance, I consider that the weight of considerations, particularly in relation to the primary consideration of protection of the community, is in favour of cancellation.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ....[Sgd]....................................................................
Associate
Dated 10 May 2013
Date of hearing 2 May 2013 Applicant In person Solicitors for the Respondent Ms A Graham, Clayton Utz
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Immigration – Visa cancellation
-
Character grounds
-
Substantial criminal record
0
1
0