Puni and Minister for Home Affairs (Migration)
[2019] AATA 3943
•26 September 2019
Puni and Minister for Home Affairs (Migration) [2019] AATA 3943 (26 September 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4248
Re:Romulus Puni
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 September 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.......................[sgd]............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – criminal history between 2003 and 2015 – convictions for multiple violent offences -– whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)Migration Regulations 1994 (Cth)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Puni v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 915
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Umi v Minister for Home Affairs [2019] AATA 2316
Vargas v Minister for Home Affairs [2019] AATA 3409Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
26 September 2019
The applicant, Mr Romulus Puni, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
The hearing was held in Melbourne on 19 and 20 September 2019. Mr Puni appeared in person and was represented by Ms Samuta of Samuta McComber Lawyers. The Minister was represented by Mr Brinley of Clayton Utz.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The factual background to this application is as follows:
(a)Mr Puni is a 33 year old[1] citizen of New Zealand.[2] He was born in Samoa,[3] was customarily adopted by his aunt and uncle as an infant, and lived in New Zealand from the age of one;
[1] Exhibit R1, 5; 27; 66;
[2] Ibid, 71.
[3] Applicant’s Statement of Facts Issues and Contentions (“ASFIC”), dated 21 August 2019, 2 [7].
(b)Mr Puni undertook primary and secondary schooling in New Zealand to Year 10 and was 15 years of age on arrival in Australia in 2001.[4] He lived with his adoptive parents and five sisters;[5]
(c)Mr Puni’s first criminal convictions were at the age of 17.[6] He left home at the age of 18;[7]
(d)Following multiple criminal convictions in 2004 and 2005, Mr Puni’s visa was cancelled in June 2005 on character grounds by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs. Mr Puni was 19 years of age at the time of visa cancellation. In September 2005, this Tribunal, differently constituted, set aside the visa cancellation decision;[8]
(e)Following further criminal convictions between 2006 and 2008, Mr Puni was issued with a formal counselling letter by the Department of Immigration and Citizenship on 11 February.[9] At that time he was serving a further full time sentence of imprisonment;
(f)Mr Puni is the father of two daughters born in Australia in May 2010 and March 2012.[10] He separated from the biological mother of the children following the birth of their second child in 2012;[11]
(g)Following further criminal convictions in 2014 and 2015, Mr Puni’s visa was again cancelled on 16 June 2017.[12] At that time he was serving an effective term of imprisonment of five years and four months.[13] Mr Puni acknowledged receipt of visa cancellation on 16 June 2017;[14]
(h)Mr Puni was invited to make representations to have the cancellation decision revoked, and did so through his authorised recipient on 12 July 2017;[15]
(i)On 9 July 2019, after considering Mr Puni’s revocation request, a delegate of the Minister decided not to revoke the visa cancellation;[16] and
(j)By application dated 17 July 2019, Mr Puni applied to the Tribunal for a review of the delegate’s non-revocation decision, stating as the reason for his application:
‘I don’t believe the decision was correct because some of the facts are not true or complete. Additionally, in the Statement of Reason sections detailing judges and psych assessments appear to be ‘handpicked’ and not set out in the full context. There are no statements regarding the positive things that were set out by the previous presiding judge and only little mention that three psych assessments mentioned Romulus’s impaired cognitive and intellectual functioning as mitigating circumstances. A different decision should be made.’[17]
[4] Exhibit R1, 367.
[5] Ibid, 71.
[6] Ibid, 31.
[7] ASFIC. 2 [12].
[8] Exhibit R1, 106-114.
[9] Ibid, 115-116.
[10] Ibid, 74, ASFIC, 3 [16]-[17].
[11] ASFIC, 3 [18].
[12] Exhibit R1, 122-125.
[13] Ibid, 48 [56].
[14] Ibid, 321.
[15] Ibid, 66-95; 322-326.
[16] Ibid, 11-26.
[17] Ibid, 8.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 1 October 2019.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act is the source of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or if there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[18]
[18] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below 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.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia; and
c. Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which 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 impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
CHARACTER TEST
Mr Puni submits in his July 2017 revocation request: ‘I am of good character but I made a lot of bad choices.’[19] Mr Puni’s most recent convictions include those in the County Court of Victoria on 19 August 2015, for which he received a total effective sentence of five years and four months imprisonment. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds Mr Puni does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
[19] Exhibit R1, 68.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of Mr Puni’s visa should be revoked. The task of identifying ‘another reason’ was recently elaborated upon by the Full Court of the Australian Federal Court in Viane:[20]
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’
[20] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
“G-documents” numbering 418 pages, and lodged by the respondent, were taken into evidence.[21] Other documents taken into evidence were:
(a)A statement from Mr Puni dated 16 September 2019;[22]
(b)A statement from Mr Puni’s sister dated 16 September 2019;[23] and
(c)A statement from Mr Puni’s father dated 16 September 2019.[24]
[21] Exhibit R1.
[22] Exhibit A1.
[23] Exhibit A2.
[24] Exhibit A3.
The Tribunal also received oral evidence from Mr Puni, Mr Puni’s parents, and three of his sisters.
National Police Certificate
Mr Puni does not dispute the information in his National Police Certificate, which the Tribunal accepts is an accurate record of his convictions.[25]
[25] Exhibit R1, 27-31.
2005 Visa Cancellation
In setting aside the cancellation of Mr Puni’s visa in 2005 (“Puni2005”), the Tribunal, then constituted by Deputy President The Hon. Howard Olney AM QC, acknowledged Mr Puni’s substantial criminal record, but concluded it was an ‘aberration which is unlikely to be repeated.’ Deputy President Olney reasoned:[26]
‘9. While serving his prison sentence, the applicant has undertaken a number of courses designed to assist in his rehabilitation. One such course related to anger management. Significantly, the applicant has not become involved in any fights whilst in goal (sic). He says that he has come to realise the stupidity of his former conduct and has resolved to change his ways, particularly by refraining from excessive use of alcohol, by avoiding bad company and by resuming involvement in the activities of the Church to which he formerly belonged.
…
22. …the Tribunal has reached the conclusion that the applicant’s criminal conduct committed during the period of alienation from his family is an aberration which is unlikely to be repeated. There is every reason to believe that with the support and guidance of his family (in particular his father) and other close friends, the applicant will not return to the lifestyle that has led him to the situation he now finds himself in. Furthermore, it is not without significance that in the event of him being granted parole at some time in the near future he will, if he is allowed to remain in Australia, be subject to supervision by the parole authorities for the first very critical nine months or so after his release from prison. This in itself will provide added incentive for him to consolidate his rehabilitation.
23. Notwithstanding his prior criminal record which in the terms of s 501(6) of the Act is classified as substantial, the Tribunal is satisfied that neither the expectations of the community nor its safety would be violated in the event that the applicant were to remain in Australia.’
[26] Puni v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 915.
2008 Formal Warning
Following the setting aside of his visa cancellation in 2005, Mr Puni continued to reoffend. He received further sentences of imprisonment in July 2006, December 2007 and January 2008. Mr Puni was subsequently issued with a formal warning by immigration authorities in February 2008 about the potentially dire consequences for his visa status if he continued to reoffend.[27] Mr Puni continued to reoffend following this warning. Although there was an extended period between September 2009 and June 2014 where no convictions were recorded against him, he was subsequently convicted of further offences on 13 June 2014, 19 August 2015, and 24 August 2015. His convictions on 19 August 2015 attracted his longest sentence of imprisonment, comprising a total effective sentence of five years and four months imprisonment.
[27] Exhibit R1, 115-116.
Sentencing Remarks
The Tribunal notes the sentencing remarks in evidence from the County Court of Victoria dated 19 August 2015[28] (“2015 sentencing remarks”) and 29 November 2004[29] (“2004 sentencing remarks”), which are discussed later in these reasons.
[28] Ibid, 32-48.
[29] Ibid, 49-65.
Medical Evidence
The Tribunal notes a number of references in the evidence to Mr Puni’s low IQ, including during Puni2005. The presiding member on that occasion relied upon the 2005 report of consultant psychiatrist, Dr Brendan Holwill,[30] which is elaborated upon later in these reasons.
[30] Ibid, 109 [14] – 112 [18].
The Tribunal notes references in the 2015 sentencing remarks to Mr Puni’s ‘intellectual and cognitive functioning’[31] based on a May 2015 report by psychologist Mr Simmons, and to a July 2015 report of neuropsychologist Dr O’Meara.[32] These are elaborated upon later in these reasons.
[31] Ibid, 42 [38].
[32] Ibid, 39-42.
Mr Puni’s evidence
The Tribunal notes Mr Puni’s written submissions in evidence,[33] which can be summarised as focussing on the strength of his connections to Australia, particularly a close relationship with his parents, five sisters, two minor children, a nephew and other relatives.[34]
[33] Ibid, 66-80; 90-92.
[34] Ibid, 76.
In his oral evidence, Mr Puni reflected on his early life in New Zealand, recalling that he ‘got into trouble’ at school and was frequently suspended and expelled. He contextualised his troubles during these years as arising from bad peer influences and habitual use of marijuana and alcohol from approximately the age of eight.[35] The 2015 Sentencing Remarks support Mr Puni’s recollections that his drug use worsened over time:
‘…when you were about 17/18 years of age you were chroming and consuming a lot of alcohol. You then began using methylamphetamines, using one point of that substance about every two or three days.’[36]
[35] Ibid, 39 [25].
[36] Ibid, [26].
Mr Puni stated that after arriving in Australia in 2001 he did not attend school, and instead worked with an uncle while living with his parents. He was convicted of his first criminal offences at the age of 17, which was followed by further frequent offending until 2009. He then met his wife-to-be in 2010 and recalls this as a more settled period in his life. Marriage and two children followed, and the couple moved into rented premises. Mr Puni supported his family by working fulltime as an excavator operator on building sites.
The settled period described by Mr Puni did not endure. The relationship with his wife became increasingly turbulent and a few months after their second daughter was born in 2012, his wife left him, returning to New Zealand. Mr Puni describes this period as very difficult. He lost his job, causing him to later lose his home and car due to being unable to keep up with payments. He claims to have started using ‘Ice’ in 2012 as a coping mechanism after being introduced to it by a cousin who now lives in New Zealand. Despite receiving considerable support from his family, including one of his sisters moving in with him to provide emotional, practical and financial support, his drug and alcohol abuse continued. Mr Puni has not worked since 2012.
Mr Puni says that after his marriage broke down the couple’s eldest child initially lived with his parents in Australia. The youngest child lived with her mother and her mother’s new partner in New Zealand. Mr Puni submits that in 2015 his former partner took their eldest child back to New Zealand, where both of the children have since lived. Since being imprisoned in 2014 Mr Puni has seen his children infrequently, and agreed with Mr Brinley that the children were now settled in school in New Zealand. Mr Puni said it was his intention if released to try and relocate his children to Australia to live with him.
Mr Puni attributes his convictions in 2014 and 2015 to substance abuse, particularly methamphetamine. He was taken through a number of his offences by Mr Brinley and recalled being caught with methamphetamine in 2015, having sold the drug to friends in ‘deal bags.’ He could not recall a number of the offences Mr Brinley referred him to, but remembered the 2015 ‘Aggravated burglary,’ which he agreed related to the enforcement of a drug debt. Mr Puni recalled a very similar ‘Aggravated burglary’ offence in 2004 when he had also broken into a house with an accomplice, describing himself during this period as ‘young, stupid, and not thinking about the consequences.’
Mr Puni characterised his early offending between 2003 and 2009 as heavily influenced by drug use, abuse of alcohol, and the influence of negative peers. He agreed with Mr Brinley that he was experiencing problems with anger and emotions during this early offending. Mr Puni said he did not undertake any rehabilitation programs during his initial periods of imprisonment. When asked by Mr Brinley why he had continued to reoffend between 2007 and 2009 given the sobering experiences of his earlier imprisonment, the setting aside of his visa cancellation in 2005, and a formal warning from immigration authorities in 2008, Mr Puni stated he was ‘not quite sure.’
Mr Puni said he could not recall his conviction for assaulting police in 2008,[37] claiming he was drunk at the time and had consumed marijuana. He insisted that he had only resisted police, not assaulted them. He recalled a driving accident that occurred because he ‘fell asleep at the wheel.’ The Tribunal notes a media report in evidence dated August 2015 referring to this accident.[38]
[37] Ibid, 29.
[38] Ibid, 103-105.
Mr Puni said his current term of imprisonment had provided considerable time for self-reflection. He was ‘really sorry’ for his offending and had come to realise the many ‘wasted years’ in prison had kept him from his children and hurt his family. He expressed a determination to remain abstinent from illicit drugs and alcohol, and ‘find different ways to resolve [his] anger problems.’ When asked about the strategies he had in mind, Mr Puni responded: ‘By talking to someone, walking away, thinking about the consequences.’
Mr Puni said that while his early convictions between 2003 and 2009 were related to youthful immaturity, his 2014-2015 convictions were linked to coping with the aftermath of his marriage breakup. This caused him to relapse into drug and alcohol abuse. When asked by Mr Brinley why earlier rehabilitative courses had not assisted him in avoiding this relapse, Mr Puni stated: ‘I didn’t think how badly it would affect me.’ When asked why the rehabilitative courses undertaken during his most recent imprisonment would be any more effective than earlier courses, Mr Puni responded: ‘Last time I wasn’t thinking as much about the consequences and the effects on my family, but I don’t want to come back to jail.’ Mr Puni claimed the more recent courses had taught him how to cope with his anger and better understand the effects of drug addiction. His family had undertaken to assist him with further rehabilitation on release. Mr Puni said he was willing to attend this rehabilitation, although he ‘already knew not to stuff up again.’ If released he would move back in with his parents, try to get his daughters to come and live with him in Australia, and ‘get back to work.’
Mr Puni said he had worked while in jail and also completed a ‘White Card’ qualification relating to workplace safely on construction sites. He said this course required a written test and by passing it he had added to his existing skills in construction, including as a ‘backhoe and bobcat’ operator. His priority if released would be to secure remunerative work and to help support his children. No corroborating evidence was provided regarding any actual prospects of work on release.
When asked about his medical issues, Mr Puni stated there were no issues preventing his return to work. He had Type 1 Diabetes and also took tablets for depression, which helped him sleep. He said he would no longer need the depression tablets if released. Mr Puni said he administered his own insulin three times a day in prison, and would have his family to help him ‘stay on track’ if released. When asked why he couldn’t continue to administer his own Diabetes treatment and source his own insulin, Mr Puni responded ‘I could try.’
When asked about the effect on his family if he was repatriated to New Zealand, Mr Puni said they would be ‘devastated and heartbroken.’ He said there was ‘nothing back in New Zealand’ for him and it would be ‘pretty hard’ for him to find employment because he had ‘lost contact’ with people who might have been able to assist him. When asked by Mr Brinley if he had previously been able to independently find work in Australia, Mr Puni said he had, with a company in the building and construction sector.
Evidence of Mr Puni’s family
The Tribunal heard oral evidence from Mr Puni’s parents and three of his five sisters. Their evidence can collectively be described as impressive and heartfelt. All of the witnesses spoke articulately and persuasively about the unconditional love and consistent support they have provided to Mr Puni over many years in difficult circumstances. The Tribunal has had regard for their written and oral submissions, which can be summarised as follows:
Mr Puni’s father
(a)Mr Puni’s father said he and his wife adopted Mr Puni when he was a few months old, from a close family member. They moved to New Zealand when Mr Puni was one and lived there for approximately 13 years. The family came to Australia for a better life in 2001. Mr Puni’s father was aware of the extent of his son’s offending since 2003 and had appeared as a witness for him during Puni2005. He had since ‘tried my best to give him as much support as he needed to stay away from trouble.’ He had offered to buy his son a truck so they could work together, but it ‘didn’t suit him’ and he had only ‘lasted about three weeks before he decided he couldn’t do it.’ The family had also tried to get Mr Puni to attend drug rehabilitation in 2014, ‘but he said he wouldn’t do it.’ Mr Puni’s father recalled his son sneaking out of the house and getting into trouble. He stated: ‘I knew back then Romulus was on drugs and I knew that Romulus wouldn’t give up drug abuse.’ But Mr Puni senior had seen positive changes in his son during his recent sentence of imprisonment, and was convinced that his son was now determined not to return to prison. If allowed to remain in Australia, Mr Puni senior said his son would move back in with them. The family had discussed putting him ‘into a clinic to…get clean,’ and to help him get a job. He said his son was now open to attending rehabilitation and had himself raised that suggestion. Mr Puni senior considered this was a positive indicator of his son’s insight and renewed motivation to live a law-abiding life.
(b)It was of great concern to Mr Puni senior that his son may be repatriated to New Zealand, because of his low IQ and the absence of family members in New Zealand to support and encourage him. He claimed that said his son would not be permitted to see his two children if repatriated, because his former wife’s new partner would not allow it;
Mr Puni’s mother
(c)Mr Puni’s mother provided a supportive statement,[39] referring to her son as a ‘good father’ and submitting that ‘for many years he stayed away from crime, went to church, committed to family and cultural activities.’ She opined that it was his Diabetes diagnosis and the breakup of his marriage that caused his offending. In her oral evidence, Mr Puni’s mother referred to the obstacles in her son’s life, which she characterised as ‘stress, loneliness, and just wanting to be accepted.’ The family had previously tried everything to help him by providing accommodation, financial support and emotional support, but ‘he moved away to his friends and started to reoffend.’ When asked by Mr Brinley if his friends and drugs had been more influential in the context of his offending to 2009, Mr Puni’s mother replied: ‘Yes.’ When asked about the influence of negative peers in the context of his offending in 2014-2015, Mr Puni’s mother responded: ‘His friends were involved, but it was mainly his marriage breakdown…We supported him, but sometimes financial support and emotional support is not enough.’
[39] Ibid, 84.
(d)When asked by Mr Brinley what was capable of curbing Mr Puni’s behaviour, Mr Puni’s mother stated: ‘We still haven’t found out what is wrong with him.’ She said the family had educated themselves on how to better respond to Mr Puni’s needs. She had seen a lot of positive changes in her son during his most recent imprisonment and was confident he would not reoffend if released. She was aware he had mentored younger prisoners and had also completed some training to help him get a job. She was very concerned about her son’s possible repatriation to New Zealand and felt he would turn back to drugs and crime due to ‘desperation for finance.’ There would be no one in New Zealand who could ‘help him, encourage him, stop him.’ She felt her son’s former wife and her new partner in New Zealand would not let Mr Puni see his children, which he would find ‘unbearable’;
Mr Puni’s sisters
(e)The Tribunal notes letters from three of Mr Puni’s sisters.[40] Key aspects of their oral evidence can be summarised as follows:
[40] Ibid, 82; 86-87; 88-89.
(i)Reference was made to Mr Puni’s difficult life, diminished sense of ‘belonging,’ and the transformational nature of his drug use, causing Mr Puni to become someone the family did not recognise. He became ‘withdrawn, disengaged, depressed and rarely came out of his room.’ His drug use was contextualised as a coping mechanism, leading to addiction and causing his frequent offending. One sister opined that Mr Puni’s drug use resulted from an inability to share his emotions, which affected men in their culture. He now realised, however, it was ‘ok to talk to us’;
(ii)Despite constant and unwavering support from his family, Mr Puni had previously found a sense of ‘belonging’ with negative peers, who he was now determined to avoid. It was submitted Mr Puni would only think of himself in the past, but now realised that missing out on six years of his children’s lives and hurting his family meant he could not continue to ‘carry on the way he was;’
(iii)Mr Puni had displayed an ability to remain abstinent from drugs and alcohol during his marriage. He was able to work, live independently, purchase a car, provide financially for his family, and engage in church and youth group activities. His offending in 2014 and 2015 should be seen in the context of his marriage breakup and his children moving to New Zealand with their biological mother. One sister opined that her brother felt abandoned by his former wife; which added to the sense of abandonment he felt from adoption, which he still ‘wasn’t fully equipped to handle;’
(iv)The family had provided constant support, including by providing accommodation and helping him look for work. While Mr Puni had worked with his father for a short time driving trucks, ‘it wasn’t the field he wanted to work in.’ One sister had moved in with Mr Puni for a short period after his marriage breakdown to provide emotional and financial support, but her efforts to help stabilise his situation were unsuccessful. Mr Puni moved back into his parent’s home and then drifted further into drug and alcohol abuse, negative associations and offending;
(v)During Mr Puni’s most recent period of imprisonment, he had repeatedly expressed remorse for his offending, had made further rehabilitative progress, and exhibited a renewed commitment to enduring change. One sister described the difference as: ‘You can talk to him now. You couldn’t talk to him before when he was on drugs’;
(vi)Mr Puni was motivated by the interests of his two children to live a more productive and law-abiding life. In 2016 Mr Puni’s youngest sister had re-established contact with Mr Puni’s former partner in New Zealand, who subsequently permitted the children to visit Australia twice a year. The family facilitated visits by the children to see their father in prison. It was submitted that when first visiting Mr Puni in 2016, his youngest child did not know him and was ‘initially scared of him,’ but since then, access with the children, although infrequent, has been a part of Mr Puni’s rehabilitation. In relation to the possibility raised by Mr Puni about his children’s return to Australia, his eldest sister stated: ‘That’s not our call – unfortunately we don’t have any control over that.’ She said it was up to Mr Puni’s former partner as to where the children lived. The relationship was described as ‘strained,’ with only Mr Puni’s youngest sister having contact. It was submitted that: ‘The only reason she lets the kids come over is because we’re here…On occasions she’s told me she’s going to let the girls stay, but she took back her word;’
(vii)If Mr Puni was repatriated to New Zealand, it was submitted he would not have any access to his children because his former wife’s new partner did not like Mr Puni and would not permit it. The Tribunal notes there was no corroborating evidence for that submission from Mr Puni’s former partner or other authorised caregivers;
(viii)Mr Puni was heavily dependent on his immediate family ‘mentally and emotionally,’ and he had no family or other support to draw on in New Zealand. His sister’s concern was that in such circumstances, particularly given his low IQ and cognitive issues, he would relapse into substance abuse and crime. It was submitted that Mr Puni’s continuing rehabilitation was ‘heavily dependent on support from his family and he would struggle to integrate himself in New Zealand.’ One sister noted that although ‘there are resources in New Zealand’ to assist him, the family would not be ‘there physically’ to help him. His family had their lives in Australia and could not easily relocate to New Zealand; and
(ix)When asked by the Tribunal why another relationship breakdown or renewed association with negative peer influences, or other trigger would not cause Mr Puni to relapse into addictive behaviours and reoffend, his sisters submitted the family was now better educated and prepared to deal with any ‘triggers.’ They previously lacked an understanding of Mr Puni’s psychological and emotional issues, but the family now had a plan in place to further educate themselves about issues like depression. They would also place their brother ‘into a rehab centre’ on release, to address his residual mental health issues and provide him with ‘the tools he needs to cope better.’
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Ms Samuta submits that Mr Puni’s offending does not fall within the category of offending described by paragraph 6.3(4) of the Direction,[41] and that the ‘relevant matters for consideration…weigh in favour of setting aside the decision.’[42] That contention is founded on the following submissions:
[41] ASFIC, 14 [84(a)].
[42] Ibid, 8 [49].
(a)‘a detailed examination’ of Mr Puni’s offending ‘does not disclose a specific pattern of criminal offending in relation to any specific type of crime’;[43]
[43] Ibid, 6 [40].
(b)Mr Puni’s ‘history of illegal substance abuse has played a significant role in the frequency of his offending’;[44]
[44] Ibid.
(c)‘the controlled environment of incarceration and immigration detention have been his first opportunity to be clear of drugs; and that clarity has allowed him to reflect on his behaviour’ which has given him a ‘growing insight into the causes of his offending, which primarily include his drug dependency and addiction’;[45]
[45] Ibid, 6 [41]; 7 [43].
(d)Mr Puni is remorseful for his past offending;[46]
[46] Ibid.
(e)‘given his young age and long history of substance use and abuse,’ Mr Puni’s ‘maturity and commitment to seeking rehabilitation and counselling limits his risk of reoffending, and this risk is further minimized by static risk factors which include his parental responsibility of two young children and employment.[47] The Tribunal notes aspects of this submission were clarified by Ms Samuta at the commencement of the hearing, to the effect that Mr Puni’s children have lived in New Zealand with their mother since 2015;
[47] Ibid, 7 [42].
(f)Mr Puni ‘has not yet had the opportunity to demonstrate an ability to maintain abstinence from substance misuse in the community,’ but has ‘taken relevant steps to seeking professional help, counselling and will participate in rehabilitation courses to limit his return to drug use (within the confines of his current circumstances of being in correctional custody)’;
(g)Mr Puni is committed to continue addressing his drug misuse to minimize the risk of recidivism, as evidenced by the completion of a number of programs while in correctional custody;[48]
(h)in circumstances where Mr Puni has ‘ceased his use of illegal substances, sought relevant and pertinent rehabilitation, taken steps to secure a lawful source of income and undertaken the responsibility of fatherhood seriously,’ any further offending by Mr Puni ‘is likely to be far less serious in nature than his aberrant offending conduct’;[49]
(i)in relation to risk of reoffending, Ms Samuta submits:
(i)while some of Mr Puni’s offending was ‘serious’ and ‘violent,’[50] he ‘has not demonstrated a pattern of violent offending that could reasonably provide a basis for finding that he presents more than a limited risk of committing a violent offence in future’;[51]
(ii)Mr Puni ‘has not demonstrated a pattern of fraudulent or deceptive offending that could reasonably provide a basis for finding that he presents any risk of committing any fraudulent or deceptive offence in future’;[52]
(iii)Mr Puni’s property-related offending ‘has not caused any significant harm to the Australian community,’ and ‘does not disclose a pattern of offending indicative of a future likelihood of offending’;[53] and
(iv)the ‘circumstances’ of Mr Puni’s most serious offending, when considered in conjunction with his ‘commencement of rehabilitation…deep remorse and insight…significant support of family, friends, and spiritual leaders,’ are such that ‘the protection of the Australian community would not be served by non-revocation.’
(j)In circumstances where the Tribunal finds this primary consideration weighs in favour of non-revocation, it is outweighed by the best interests of Mr Puni’s minor child in Australia and the strength, nature and duration of his ties to Australia.
[48] Ibid 7 [45].
[49] Ibid 7 [46].
[50] Ibid 8 [48].
[51] Ibid, 8 [47.(a)].
[52] Ibid, 8 [47.(b)].
[53] Ibid, 8 [47.(c)].
Mr Brinley’s submissions regarding this primary consideration can be summarised as follows:
(a)Since 2003, Mr Puni has appeared before a court on at least 12 separate occasions and has been found guilty or convicted of at least 88 criminal offences, including:
(i)violent offences;
(ii)offences against police;
(iii)dishonesty offences;
(iv)a threatening offence (make threat to kill);
(v)property offences; and
(vi)drug offences.
(b)In committing his offences, Mr Puni has utilised a high level of violence, which is a recurring feature of the charges he has answered, and which has inflicted serious physical injury;[54]
(c)Mr Puni has received a relatively lengthy sentence of five years and four months imprisonment for his most recent offending, reflecting the objective seriousness of his conduct;[55]
(d)Mr Puni has reoffended despite multiple sentences of imprisonment, the setting aside of a previous visa cancellation in 2005, and a formal warning from immigration authorities in 2008;[56]
[54] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”), 10 [30].
[55] Ibid, 11 [30.(d)].
[56] Ibid, 11 [31]-[35].
The 2015 sentencing remarks state that Mr Puni has a ‘lengthy criminal history’,[57] and describe the circumstances of his offending as follows:
[57] Exhibit R1, 36 [15].
‘On 23 December 2014 and…in company with an accomplice, you went to a flat where [name redacted] lived and stole his car, apparently as collateral for a drug debt. He saw you driving his car away. He chased you and caught up with you. You led him to believe that you intended to accompany him back to his flat, but having left him with that belief you drove his car away. [name redacted] found your accomplice that same day at around midday. He obtained his car keys from him. He was told by your accomplice where his car was parked. He then collected his car and returned to his flat.
At about 5:00 pm you knocked on the door of his flat. [name redacted] observed that you were accompanied by an accomplice. He heard someone yell out “open the door cunt or I swear I’ll kick the cunt in.” [name redacted] shut the door of his bedroom, and as he did so he heard a loud bang consistent with the front door of his flat being kicked in. You entered his flat. These facts go to the charge of aggravated burglary.
You punched him to the area around his left eye. You or your accomplice yelled at [name redacted] “you’re a fucking dog, you cunt! You want to call the cops? You fucking dog.” [name redacted] stumbled and fell onto his bed.
You then jumped on top of [name redacted] punching him to the head. Your accomplice, who was armed with a Tomahawk style axe, struck [name redacted] to the area of his left foot and ankle. He tried to get up off his bed. You grabbed him in a headlock and squeezed his neck so tightly that he lost consciousness for about 45 seconds. At around this point your accomplice struck [name redacted] to the back of the head with a Tomahawk. You and your accomplice verbally abused [name redacted] while you are both assaulting him...
…
The offence of aggravated burglary has been described as a particularly nasty form of criminal conduct which is typified by home invasion involving a number of offenders carrying weapons where the intention is to rob or injure victims for some actual or perceived wrong…
…
I am in little doubt that you were the motivator and instigator of the aggravated burglary. It was your intention to enter [name redacted] flat by whatever means you could and as it happens you did so by breaking through a doorway. You must have known that your accomplice was carrying a tomahawk, and that it was likely that it would be used to assault [name redacted] or at least be brandished to frighten him…The aggravated burglary was aggravated by the fact that you were in company with an accomplice who was armed. You knew that yelling at the front door of his flat and then breaking through the front door with an armed accomplice was designed to maximise the fear you intended [name redacted] to experience. The nature of the aggravated burglary brings it within the more serious category of this type of offending.
Once you gained entry to [name redacted] flat you jumped on top of him and started punching him to his head. The blows that he felt to his left foot and ankle must have been blows delivered by your accomplice using the tomahawk...
[name redacted] refused to make a victim impact statement. There is no medical evidence before me which enables me to determine whether he has suffered any residual consequences of the injuries inflicted on him. I assume that he has recovered from those physical injuries; however, he would have been placed in significant fear when he was confronted and assaulted by you and your armed accomplice…’[58]
[58] Ibid, 34-44.
The 2004 sentencing remarks refer to Mr Puni’s convictions for ‘Aggravated burglary,’ ‘Intentionally cause injury,’ ‘Criminal damage’ and ‘Threat to kill’ as ‘serious.’[59] His Honour stated:
‘You, Puni, and…were armed with baseball bats. You forced your way inside the house…There was another male and female in the house at the time…Understandably, the occupants of the house in particular the female occupant, was terrified.
The victim suffers from a disability. He has no use of his left arm, and a pronounced limp in his left leg. He was 18 years of age at the time. The three of you punched [name redacted] on the way to [name redacted] house. One of you struck [name redacted] with a baseball bat to the side of his face. [name redacted] was dragged along the footpath, and he led you to [name redacted] house.
The three of you called out for [name redacted] to come out from the driveway. You, Mr Puni, struck the wooden fence with your baseball bat, causing damage to the fence. The police were called. [name redacted] sensibly remained inside the house. The three of you then left.
At about 12.00 a.m. the three of you returned to [name redacted] house armed with a tyre lever. You smashed the letterbox whilst calling on [name redacted] to come out. [name redacted] family members came out, and his mother…was abused by you. One of you threatened that you would chop [name redacted] head off and kill him.
…
The aggravating features of your criminal conduct are as follows…It involves a home invasion of an innocent young man, who is terrified, and attacked in his own home by a group of large alcohol fuelled offenders, armed with baseball bats. The victim in these matters is a youth who was physically handicapped. He was taken from his home and forced to disclose the address of your intended victim…Your actions were pre-meditated, and you, Mr Puni, were the ringleader. It was your dispute that led to the current offending.
Because of your age, Mr Puni, I had you assessed for suitability for youth training Centre disposition. I have been provided with a report…That report concludes that you are not a suitable candidate for youth training centre…’[60]
[59] Ibid, 53 [16].
[60] Ibid, 50 [3] – [20]
Tribunal findings: The nature and seriousness of the conduct
The Tribunal considers Mr Puni’s convictions may be categorised as follows:
a. Violent offences: Such as ‘Aggravated burglary’ (2004 and again in 2015); ‘Intentionally cause injury’ (2004 and again in 2015); ‘Resist police’ (2008); ‘Assault police’ (2008); ‘Affray’ (2006)’ ‘Common law assault’ (2006); ‘Make threat to kill’ (2004); ‘Unlawful assault’ (two charges in 2003).
b. Traffic and driving offences: Such as ‘Dangerous driving while pursued by police’ (2015); ‘Drive at speed dangerous’ (2015; 2014); ‘Fail to stop motor vehicle on request’ (2015); ‘Drive whilst disqualified’ (2015; 2014); and ‘Drive while authorisation suspended’ (2015; 2014);
c. Dishonesty, vehicle theft and property damage offences: Like those Mr Puni was convicted of in 2015, 2009, 2008, 2007, 2005, 2004, and 2003;
d. Drug Offences: Like those Mr Puni was convicted of in 2015, 2014, and 2008; and
e. Conditional Liberty Offences: Like those Mr Puni was convicted of in 2015, 2009, 2008, 2007, and 2004.
The following aspects of paragraph 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Puni’s case:
(a)13.1.1(1)(a): Mr Puni’s lengthy prior history encompasses multiple convictions since 2003 for offences involving violence or the threat of violence,[61] which are viewed very seriously.[62]
(b)13.1.1(1)(c): Mr Puni has been convicted of ‘Resist police’ and ‘Assault police.’[63] Offences against police officers performing their duties are viewed seriously. He was also was the ringleader in a violent offence against a physically-handicapped man,[64] who is a vulnerable person within the meaning of the Direction.
(c)13.1.1(1)(d): Imprisonment is the last resort in the Court’s available sentencing options. Mr Puni was first imprisoned in 2004 after breaching the conditions of previous convictions in 2003. His offending while under obligations to the court is an aggravating feature of his conduct. He has received multiple sentences of imprisonment, reflecting the gravity and objective seriousness of his offending. It is noteworthy that Mr Puni’s most recent convictions in August 2015 constitute his most serious offending to date and attracted his longest sentence of imprisonment; an effective term of five years and four months.
(d)13.1.1(1)(e): Mr Puni’s criminal history cannot be regarded as isolated or impulsive, given that it has persisted over more than a decade and has increased in seriousness. Notwithstanding a lengthy period between September 2009 and June 2014 where no offences were recorded against Mr Puni, he subsequently reoffended.
(e)13.1.1(1)(f): The compounding effect of Mr Puni’s offending since 2003 has imposed significant costs and consequences on the Australian community, including to his victims and the broader community through the costs of intervention by police and the courts.
(f)13.1.1(1)(h): Mr Puni was not dissuaded from reoffending by a visa cancellation that was set aside by this Tribunal in 2005,[65] or a formal warning from immigration authorities in 2008.
[61] Ibid, 36 [15]; 37 [16].
[62] Mr Puni’s legal representative accepts his offending is ‘very serious.’ See ASFIC, 14 [84(b)].
[63] Exhibit R1, 29 [10 January 2008].
[64] Ibid, 50 [4]; 53 [16].
[65] Puni2005.
For the reasons outlined above, Mr Puni’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
In his July 2017 Personal Circumstances Form (“PCF”), Mr Puni explains his offending with reference to the following factors:
‘the stress and pain of being a disappointment to my family, the expectations from my parents to be good citizen, live comfortable and happy life in wealth and health, my five sisters have all attained that. To be diagnosed with Diabetic Type 1 everyday I felt like I can’t go any longer but my family and daughters kept me trying to live everyday. The hardest factor was when my wife left everything was gone and taken my family, house job car I had nothing left. I was broken. Luckily for my family Im still here.’[66]
[66] Ibid, 77.
Mr Puni further submits:
‘I have been rehabilitated in prison and just want my life back to be a good influence to my kids, a good example for my nephew and an active part of my family, church community and the Australian community.
I know I won’t offend again because I’ve realised I have so much to lose and how much time I have already lost with my family and kids. Also because I see how much I have hurt them and the menace I caused when I was under the influence.
…
I know I wont reoffend my reason is my daughters are older now they understand now why I’m in the Big House as they say. I love my daughters my parents and sisters whom I’ve made suffered through my stupidity and selfishness.
…
…I fear that without the guidance and the love of my immediate family I will become depress and turn to crime for comfort and acceptance.’ [67]
[67] Ibid, 68; 77; 80.
In relation to rehabilitation, the Tribunal notes the previous references in evidence, including in Puni2005 and the sentencing remarks, to courses and programs undertaken by Mr Puni. Mr Puni states he has completed a number of courses during his recent imprisonment, including a ‘Learners Driving Licence…[and]…a course for a Red card to be able to work in construction work driving Big Machines.’[68] He has completed the following vocational and rehabilitative programs since 2015:
(a)(A letter from Corrections Victoria dated 30 August 2018, confirming) Mr Puni participated in the ‘Disability and Supported Pathways Violence Intervention Program (DSP VIP) between 20/06/2017 and 30/08/2018’ at Port Phillip Prison;[69]
(b)In 2018 of ‘Control traffic with stop-slow bat;’[70]
(c)certificate in ‘blood spill training session’ dated July 2018;[71]
(d)in 2017 of six modules, namely: ‘Participate in workplace safety arrangements; Maintain carpeted floors; Clean glass surfaces; Maintain furniture, fittings and room dressing; Sort and remove waste and recyclable materials; and Participates in workplace safety arrangements;’[72]
(e)in 2017 of ‘Use hygienic practices for food safety;’[73]
(f)in 2015 of ‘Work safely in the construction industry;’[74]
(g)Certificate of completion for a six-hour ‘AOD and Depression’ education program on 25 March 2015, constituting ‘psycho education about the causes and management of depression, how to identify depression in themselves and others, depression management techniques and where to access help both within and outside of prison;’[75] and
(h)Certificate of completion of a 24-hour ‘Drug and Alcohol Treatment Program’ dated 18 May 2015.[76]
[68] Ibid, 77.
[69] Ibid, 96.
[70] Ibid, 98.
[71] Ibid, 97.
[72] Ibid, 99-100.
[73] Ibid, 102.
[74] Ibid, 101.
[75] Ibid, 359.
[76] Ibid, 361.
Mr Puni stated he has no family in New Zealand to rely upon and nowhere to live if repatriated.[119] He expressed concerns about securing stable accommodation, work, and generating sufficient income for his daily living expenses. He also submitted that repatriation to New Zealand will separate him from his currently strongest sources of practical and emotional support in Australia. In his 2017 PCF, Mr Puni lists Diabetes Mellitus Type 1 as his only diagnosed medical condition. He writes: ‘Without the support of my family I would be unable to get the relevant medication for my diabetes.’ Mr Puni has not lodged any corroborating evidence relating to his Diabetes, or why he needs family support to access his medication. During the hearing his evidence was that he independently attends to his Diabetes treatment in prison. When asked why continuing to do so may be an issue for him in New Zealand, Mr Puni stated he was unfamiliar with New Zealand’s healthcare system. When asked why he couldn’t source his Diabetes medication from a pharmacy as he used to do when at liberty in Australia, Mr Puni responded: ‘I could try.’ Although the Tribunal notes Mr Puni’s preference for family assistance in dealing with his Diabetes, he has done so independently in prison for some years. There is no evidence before the Tribunal on which to reliably base a finding that he cannot access medication for his Diabetes without family support.
[119] Exhibit R1, 78.
Mr Puni submits in his February 2017 PCF that he has a current New Zealand passport.[120]
[120] Ibid, 71.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)Mr Puni was 15 years of age when he arrived in Australia, having undertaken all of his schooling in New Zealand. The Tribunal cannot discern from the evidence any cultural or language impediments to his repatriation to New Zealand;
(b)There is no evidence that Mr Puni is unable to work as the result of any medical condition. His oral evidence is that securing remunerative work is an early priority if released and that there are no impediments to his aspiration. Indeed, his work prospects may have been enhanced by the vocational courses completed while imprisoned. While the Tribunal accepts Mr Puni does not have any current contacts in New Zealand to assist him in searching for remunerative work, and has previously received assistance from his family in helping him secure employment, his evidence at the hearing was that he had independently secured work in Australia in the past;
(c)Mr Puni is relatively young at 33 years of age. His evidence is that he wants to return to work and live a law-abiding life. There appears to be no reason why he could not also pursue these aspirations if repatriated to New Zealand;
(d)Mr Puni would be confronted by challenges in re-establishing himself in a country he last lived in as a 15-year-old. These include finding stable accommodation, employment, addressing his health support needs, and developing new friendships. If Mr Puni were unable to secure stable accommodation or work in New Zealand, or had trouble accessing required medication, there is no evidence he would not have access to the same housing services, income support, and healthcare available to all other New Zealand citizens;
(e)Mr Puni’s submission about not being able to access or administer his Diabetes medication without the assistance of his family is not accepted; and
(f)Repatriation to New Zealand would separate Mr Puni from his parents and siblings, his currently strongest sources of practical and emotional support. Although no reference was made during the hearing to Mr Puni’s current partner, the Tribunal accepts Mr Puni would also be separated from her. There was no statement or other evidence from his current partner, so it remains unclear to the Tribunal whether or not she would accompany Mr Puni to New Zealand if he was repatriated. No weight is placed on that prospect (if any).
On balance, this consideration weighs strongly in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Puni’s application, as provided for at paragraph 14(1) of the Direction.
CONCLUSION
Mr Puni’s offending is very serious and the harm that would be caused by a repeat of his violent offending in particular is so serious that any likelihood of repetition is unacceptable. The nature and seriousness of his offending, its cumulative effect, and the unacceptable risk to the Australian community, supports the exercise of the discretion to refuse to revoke the cancellation of his visa. The primary consideration ‘Protection of the Australian community’ weighs very strongly against revocation.
Any sympathy extended to Mr Puni as a long-term resident of Australia over the last 18 years, or in relation to his adoption and marriage breakup, has been extinguished by the gravity, cumulative effect and persistent nature of his criminal offending. He has shown a persistent disregard for Australia’s laws and has not taken advantage of the setting aside of a previous cancellation of his visa in 2005, or a formal warning from immigration authorities in 2008. The Australian community would consider that the mandatory cancellation of Mr Puni’s visa should not be revoked and the primary consideration ‘Expectations of the Australian community’ weighs very strongly against revocation.
Mr Puni has made a limited contribution to Australia through intermittent work, Church involvement, and some volunteering. The force of any positive contribution, however, is substantially diminished by his persistent criminal offending, which commenced soon after he arrived in Australia and has continued for over a decade. Nevertheless, Mr Puni’s strongest family, social and emotional ties are to members of the Australian community, from whom he accesses meaningful practical and emotional support. The consideration ‘Strength, nature and duration of ties’ weighs very strongly in favour of revocation.
There are no cultural or language impediments to Mr Puni’s repatriation to New Zealand. There is also no evidence that Mr Puni is unable to work as the result of his Diabetes or any other conditions. He is relatively young at 33 and his evidence is that he wants to return to remunerative work and live a law-abiding life. There is no evidence why he could not live such a life in New Zealand. His work prospects can only have been enhanced by the vocational courses he has completed while imprisoned. That said, repatriation to New Zealand would separate Mr Puni from his parents and siblings in particular, who are his strongest sources of practical and emotional support. This is particularly so given his intellectual and cognitive difficulties. However, Mr Puni has previously rejected the support offered by his family, preferring instead to associate with negative peers, engage in substance abuse, and commit multiple serious crimes.
Mr Puni would undoubtedly be confronted by challenges in re-establishing himself in New Zealand, a country he last lived in as a teenager. They include securing stable accommodation, employment, healthcare support, and developing new friendships. But these challenges are not considered insurmountable. If Mr Puni was unable to immediately secure stable accommodation, or work, or any required medications in New Zealand, there is no evidence he would not have access to the same healthcare, housing services, and income support available to all New Zealand citizens. On balance, however, the consideration ‘Extent of impediments if removed’ weighs strongly in favour of revocation.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Puni’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which strongly favour revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
116.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
……………[sgd]……………….
AssociateDated: 26 September 2019
Date of hearing: 19 & 20 September 2019 Advocate for the Applicant: Ms Jennifer Samuta Solicitors for the Applicant:
Advocate for the Respondent:
Samuta McComber Lawyers
Mr Chris Brinley
Solicitors for the Respondent:
Clayton Utz
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