Puni and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 915

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 915

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/617

GENERAL  ADMINISTRATIVE  DIVISION

Re:       ROMULUS SIANIA PUNI

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       The Hon. Howard Olney AM QC, Deputy President

Date:20 September 2005

Place:Melbourne

Decision:The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant’s visa not be cancelled.

(sgd) Howard Olney

Deputy President

MIGRATION –sub‑class 444 visa – character test ‑ substantial criminal record – cancellation – whether discretion should be exercised

Migration Act 1958 s 501

REASONS FOR DECISION

20 September 2005                  The Hon. Howard Olney AM QC, Deputy President

1. This is an application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) under s 501(2) of the Migration Act 1958 (the Act) to cancel the applicant’s sub‑class 444 special category visa.

2.      The visa was cancelled on 14 June 2005 on the ground that Mr R. S. Puni (the applicant) did not pass the character test.  The basis of the delegate’s decision was that the applicant having been sentenced to a term of imprisonment of 12 months or more is deemed to have a substantial criminal record (s 501(7)(c)) and thus for the purposes of s 501, does not pass the character test (s 501(6)).

3.      It is common cause that in November 2004 the applicant was sentenced to a period of 20 months imprisonment by the County Court of Victoria.  He is presently in prison.  He will become eligible for parole on 29 September 2005.  His earliest date of release is 26 June 2006.

4. The only issue between the parties is whether, notwithstanding the provisions of s 501(6), the discretion conferred by s 501(2) should be exercised in favour of the applicant.

THE APPLICANT

5.      The applicant is a 19 year old New Zealand citizen.  He was born in Samoa in 1986 and was taken to live in New Zealand a couple of years later.  In March 2001 the applicant moved to Australia with his parents and 5 sisters.  Initially, he resided with his family but following a degree of domestic conflict, particularly with his father, he left the family home.  By this time he was 18 years of age.

6.      On 25 August 2003 the applicant was convicted of a number of offences in the Magistrate’s Court for which he was placed on a community based order.  The offences in question involved violence and the theft of mobile telephone.  In March 2004 he committed further more serious offences, also involving violence, for which he was sentenced in November 2004.  In the meantime, in June 2004, by reason of his non‑compliance with the community based order of August 2003, he had been re‑sentenced for the original offence.

THE EVIDENCE

7.      On the hearing of the application the Tribunal heard evidence from the applicant, his mother, his father and a consulting psychiatrist.  In addition a number of written statements were tendered without formal proof.  Also before the Tribunal were the “G” documents which included details of the applicant’s criminal record and the sentencing remarks of the County Court judge who dealt with the applicant in November 2004.

8.      The applicant made no attempt to justify or minimise the seriousness of his criminal conduct.  His explanation that the company he began to keep after leaving home as well as excessive consumption of alcohol and the use of drugs had been the factors which led him into this course of conduct appears to be entirely credible.  Nor has he complained about the sentence of imprisonment imposed by the Court; a sentence which, on reading the judge’s sentencing remarks appears to have been entirely appropriate.

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.  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.

10.     An important factor in the applicant’s plan for his post‑prison life is that he has become reconciled with his father who has undertaken to provide him with training and employment in his business as a courier; and further that with the enthusiastic concurrence of his parents and his sisters, he will return to live with them in the family home.

11.     The applicant’s parents were impressive witnesses.  They confirmed their desire that the applicant should return to the family home after he is released from prison.  Mr Puni Senior also indicated that after training his son in the business, he would purchase him a vehicle of his own.  The applicant’s father is clearly a firm disciplinarian and appears to have accepted that to some extent the previous alienation of his son was attributable to the absence of a close relationship between them.

12.     Another important aspect of the evidence of the applicant’s parents is that whilst the family is now well established in Australia and that there is virtually no extended family in New Zealand that could provide support to the applicant if he were to return there.  Indeed, it appears that the only closely related family member remaining in New Zealand, and her partner, follow a lifestyle which is hardly conducive to supporting a young man attempting to turn his back on drug and alcohol abuse.

13.     The witness statements tendered in evidence are for the most part from family and friends who speak in favourable terms of the applicant’s character and life style prior to the break with his family.  The relevance of that evidence is that it tends to show that those who have known him in the past have not abandoned him and would support him in the future.

14.     The only truly independent evidence called in support of the applicant’s case is that of Dr Brendan Holwill, a consulting psychiatrist.  Communication between the applicant at the rather remote Fulham prison and Dr Holwill in Melbourne, was of necessity carried out by video link.  This occurred on 6 September 2005 on which date the doctor wrote an extensive report (Exhibit A3).

15.     In the course of cross‑examination Dr Holwill referred to the alienation that had occurred between the applicant and his family leading up to him leaving home.  The following exchange between counsel and the witness then occurred at transcript  pages 41‑42:

…

And did he explain to you the reason for that alienation? --- Well, he implied that it was really due to his increasingly unacceptable behaviour to the family.  I asked if there were other things, and there didn't appear to be. He said that his father had admonished him and punished him in the past, given him a clip on the ear, but he seemed to regard those totally appropriate at the time.  He gave as an example, when he was expelled from school, and his father was quite angry with him and boxed his ears, but he said, well, you know, what else would he do?  It wasn't as though he was angry or upset about that, he thought it was reasonable.

Were you able to form a view as to why Mr Puni was acting in that rebellious kind of way? --- That is very difficult to do.  I think there are a number of factors.  One was that the group of people he had fallen in with, his peers, were all clearly living that sort of lifestyle.  His intelligence is low, and he readily admitted that it is quite apparent that he is very easily led, that he had fell into that lifestyle which he found enjoyable, given - when confronted by his family, he basically said, fine I will live like this, I will give up my job.  He now looks back on that with some regret and says, well how foolish was I, but at the time it seemed reasonable to him.

And was that lifestyle one where he and his friends consumed large amounts of alcohol as well? --- Yes, he told me that he was using a lot of alcohol and cannabis, and that he - he freely admitted that they were inebriated virtually every day.

In your statement you say that Mr Puni - you say that you understand that his IQ has been measured at 69? --- Yes.

I realise that is not your view, that is what you have been told? --- It is in some of the documentation that was supplied, yes.

Are you able to indicate to the tribunal what that IQ of 69 means? --- That is - it is a fairly low level.  A person with an IQ of 69 is certainly able to conduct their own affairs and to read simple things, follow simple programs on the television, and they would be able to do some sort of repetitive work if they were trained to do it.  But they wouldn't be able to hold down a work position, for instance, where there was any consistent decision making required.  So they could operate a machine, that sort of thing, and be taught to do that quite well.  And the other thing is that often when people have at a low IQ like that - and that is an overall assessment, but they may have some areas where they function quite highly, like they might be very good at sport, or they might be very good with eye/hand co-ordination, so they could work very well, say, as a tradesman, but be hopeless at a check account.  That type of variation can occur.

And that contributed to him being easily led by his peers? --- I think - it is one of the factors, I think, yes.

16.     Dr Holwill was then questioned about an observation in his report that on mental status examination the applicant presented with no abnormalities.  When asked what that meant the witness responded at transcript page 42:

…It means that there are no abnormalities in either his mood state, in his capacity for logical thinking, his orientation.  He was aware of where he was.  He was able to attend to the interview properly. There was no obvious anxiety or depression.  There was (sic) no disorders or perceptions … and he wasn't psychotic.

The following exchange between counsel and the witness then followed at transcript pages 42‑43:

…

Okay.  So in your view, Dr Holwill, if the factors that existed prior to Mr Puni's incarceration, specifically having a group of peers who engage in alcohol and drug abuse and offending behaviour, if those factors were to exist again after Mr Puni is released, would that lead to a risk of him re offending? --- Well, yes, it would.  I think the major risk that would lead to him re-offending would be if he returned to heavy alcohol abuse, and as I have said in the report, that is one of the areas of concern I would have, because given his low IQ and impulsivity, which he has shown in the past, if he combined that with heavy alcohol use then he is likely to be aggressive or violent or to offend in some way which he wouldn't normally, if he wasn't drunk.  What I am saying is he probably has less control under those circumstances than the average person.

Do you think the fact that Mr Puni considers that he will be able to use alcohol on a social level when he gets out of prison increases the risk that he could potentially return to alcohol abuse? --- That would be a cause of concern to me.  If I was looking after him I would be trying to establish the idea that he could not afford to use alcohol at all.

17.     Dr Holwill said that he had discussed the applicant’s offences with him at some length and when asked if the applicant had expressed remorse at any stage, the witness answered in the affirmative saying that the applicant “was quite contrite over them and was a bit disgusted with his own behaviour” (at transcript page 42).

18.     The fact that while in prison the applicant had undergone an anger management course and had not been involved in any altercations impressed Dr Holwill as did the fact that the applicant is now spending more time talking to his father which he thinks is very positive.  As to the applicant’s relationship with his father he said a transcript page 44:

…he certainly does hold his father in very high regard, as certainly someone who he looks up to, and one of the things that troubles is he has shamed his father and he - now that he has this new relationship with his father and he is looking forward to working with him, in that sense he is going to have some supervision, and he saw that as being positive and I agreed with him.

THE MINISTERIAL DIRECTIONS

19.     The Ministerial Direction N° 21 given pursuant to s 499(1) of the Act directs the Tribunal’s attention to two primary considerations that are relevant in the circumstances presently under consideration.  The Tribunal must take account of first the expectations of the community and second, the protection of the community.  In a case of this nature there is clearly an overlap between these two issues.  A third consideration referred to in the Minister’s direction, the welfare of children, does not arise in this case.

20.     As a general proposition it may reasonably be asserted that the community would expect people who are resident in Australia, whether they be citizens or otherwise, to refrain from breaching the law and particularly to avoid serious criminal offences involving physical violence; and by the same token, it is a reasonable community expectation that such breaches be visited with condign punishment.  In this case, the applicant’s conduct has fallen short of the reasonable expectation of the community and as a result he has been required to endure appropriate punishment.  There is however in this case the circumstance that the punishment imposed and the applicant’s response to it has given rise to a real prospect of rehabilitation.

21.     The protection of the community from unlawful conduct particularly from unprovoked violence is of paramount importance.  The applicant’s past conduct in relation to the offences of which he has been convicted and imprisoned is a matter of concern.  Whether or not it is necessary to remove the applicant from Australia to ensure the protection of the community is of course dependant upon whether, if he remains here, he re‑offends in the same manner.

CONCLUSIONS

22.     Upon the evidence and other material that has been put before it, 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.

24.     The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant’s visa not be cancelled.

I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of

The Hon. Howard Olney AM QC,

Deputy President

(sgd)     Olympia Sarrinikolaou

Clerk

Date of Hearing:  12 September 2005

Date of Decision:  20 September 2005
Counsel for the applicant:         Mr R. Niall and Ms F. Ryan

Solicitor for applicant:               Holding Redlich Lawyers

Solicitor for respondent:            Ms C. Petre, Clayton Utz Lawyers