Puni and Minister for Home Affairs (Migration)

Case [2019] AATA 3943

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 3409

Viane 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

  1. 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”).

  2. 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.

  3. For the reasons that follow, the Tribunal affirms the decision under review.

    BACKGROUND

  4. 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…

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AGLC
Puni and Minister for Home Affairs (Migration) [2019] AATA 3943
Case
[2019] AATA 3943
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Puni, a citizen of New Zealand, for review of a delegate's decision not to revoke the mandatory cancellation of his visa. Mr Puni arrived in Australia at the age of 15 and had resided there for approximately 18 years. His visa was cancelled on character grounds in June 2017, at which time he was serving a significant term of imprisonment. This was the second time his visa had been cancelled on character grounds, following an earlier cancellation in 2005 which was subsequently set aside by the Tribunal.

The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation of Mr Puni's visa should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved considering whether any identified reason carried sufficient weight or significance to warrant revocation, having regard to the principles outlined in *Viane v Minister for Immigration and Border Protection* [2018] FCAFC 116. The Tribunal considered various factors relating to the nature and seriousness of Mr Puni's criminal offending, including the frequency and cumulative effect of his convictions, and the potential risk to the Australian community.

The Tribunal found that Mr Puni's offending was very serious, with a cumulative effect and persistent nature that posed an unacceptable risk to the Australian community. Despite acknowledging Mr Puni's long-term residency in Australia, his family ties, and his stated commitment to rehabilitation and addressing substance abuse, the Tribunal concluded that these factors were outweighed by the gravity of his criminal conduct. The Tribunal noted that Mr Puni had previously been given an opportunity to rehabilitate following the setting aside of a prior visa cancellation and a formal warning, but had re-offended. Consequently, the Tribunal affirmed the decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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)].