Re Vavao Niko and Minister for Immigration and Citizenship

[2011] AATA 300

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0692

GENERAL ADMINISTRATIVE DIVISION		)
Re		Vavao Niko

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date09 May 2011

PlaceSydney

Decision The decision under review is AFFIRMED.

...................[sgd].......................

M D Allen, Senior Member  

CATCHWORDS

IMMIGRATION & CITIZENSHIP: Deportation of non-citizen. Application of Direction 41 under the Migration Act 1958. Risk of potential harm to the community and the nature of that harm outweighing all other considerations. Decision under review affirmed.

LEGISLATION

Migration Act 1958, s499, 501.

CASES

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81.

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Rosson v Minister for Immigration and Citizenship [2011] FCA 194

REASONS FOR DECISION

09 May 2011 M D Allen, Senior Member            

1. In this matter the Applicant sought to set aside a decision by the Respondent to cancel his residency visa on the ground that he did not satisfy the character test as set out in Section 501 of the Migration Act 1958 (“MA”).

2. Subsection 501(2) MA states:

“The Minister may cancel a visa that has been granted to a person if:

(a)  the Minister reasonably suspects that the person does not pass the character test; and

(b)  the person does not satisfy the Minister that the person passes the character test.”

3. Whereas subsection 501(6) MA states:

“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

(b)  the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)  having regard to either or both of the following:

(i)  the person's past and present criminal conduct;

(ii)  the person's past and present general conduct;

the person is not of good character; or

(d)  in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)  engage in criminal conduct in Australia; or

(ii)  harass, molest, intimidate or stalk another person in Australia; or

(iii)  vilify a segment of the Australian community; or

(iv)  incite discord in the Australian community or in a segment of that community; or

(v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.”

4. “Substantial Criminal Record” is defined by paragraph 501(7)(c) MA as where a person has been sentenced to a term of imprisonment of 12 months or more.

5. In exercising the discretion whether or not to cancel the Applicant’s visa I am required, pursuant to section 499 MA, to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.

6.      At the time the Minster’s delegate made the decision in this matter and currently the Ministerial Direction in force is No.41.

7.      Direction No.41 states as it’s objective:

“5.1 Objectives

1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

2) In this regard in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

3) The Government is especially mindful to protect the safety of community’s more vulnerable members, including minors, the elderly and the disabled.”

8.      Further general guidance is given in clause 5.2(2) of Direction No.41, namely:

“In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:

(a) the nature of any harm that the person may cause to the Australian Community;

(b) the risk of that harm occurring;”

9.      Direction No.41 then goes on to provide that in exercising the discretion whether or not to cancel a visa, the decision maker shall take into account four primary considerations and seven other considerations.

10.     On 30 July 2010 Her Honour Judge Richards in the District Court of Queensland at Ipswich sentenced the Applicant to an effective head term of 21 months imprisonment.

11.     The Applicant had pleaded guilty to two indictable offences, namely the dangerous operation of a vehicle and appeared for sentence in relation to ten summary offences.  He was sentenced to twelve months imprisonment in relation to the indictable offences and a further nine months imprisonment, cumulative upon the twelve months, for four of the summary offences.  Given the term of imprisonment imposed there can be no question that the Applicant failed the character test.

12.     The Primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction No.41 are:-

“(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)  whether the person was a minor when they began living in Australia;

(c) the length of time a person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;

(d)  relevant international obligations, including but not limited to:

(i) the best interests of the child as described in the Convention on the Rights of the Child (CROC);

(ii) …”

PROTECTION OF THE AUSTRALIAN COMMUNITY

13.     Paragraph 10.1 of Direction No.41 reads inter alia:

“(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of the Direction.

(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated.”

14.     Although the offences committed by the Applicant do not fall within those offences listed in Direction No.41 as serious the actual facts of not only the two indictable offences but also those of breaching a Domestic Violence Order show that the Applicant’s offences can properly be regarded as serious.

15.     Exhibit R6 contains outlines of the facts alleged to constitute the two indictable offences.  The Applicant conceded that on his sentencing his counsel did not dispute any of the material put forward by the Crown as constituting the facts of the offences.

16.     On the first count the facts given read:

“The offender was driving his 1988 red Toyota Corolla sedan 060LOA along Springfield Parkway in a westerly direction where he has approached a round about making a left turn entering onto the Springfield Greenbank Arterial road.  Upon approaching the roundabout, situated outside the Orion Shopping centre in Springfield Lakes (intersection with Mine Street) the offending vehicle has pulled in behind a 2009 white coloured Hyundai Getz Hatch.  As the Hyundai Getz has proceeded around the roundabout in the right hand lane, the offender has proceeded to ram the Getz and the driver of the Getz has come to a stop and the offender has then reversed his vehicle before ramming it another two times.  The driver of the Getz has then proceeded to get out of his vehicle and has been standing on the roundabout. The offender has then reversed his vehicle and proceeded to drive up onto the roundabout, narrowly missing the driver and has subsequently clipped the Hyundai Getz, leaving red paint on the driver’s door and also has buckled the door.  Offender has then proceeded to drive north along the Springfield Greenbank Arterial road towards Springfield.  The offender at no time stopped and provided his details to the driver of the Getz.”

17.     As to the second count, the facts given were:

“The offender was driving his 1998 Toyota Corolla Sedan 060LOA along the Centenary Motorway heading south.  Upon approaching the Springfield Lakes exit, the offender has pulled in behind a 2005 Suzuki Swift hatchback, the offender has then proceeded to ram the back of the Suzuki Swift on two occasions before pulling out and onto the right hand side of the vehicle. The offender has then proceeded to swerve his vehicle to the left which has in turn caused the Suzuki Swift to take immediate evasive action and has forced her off the roadway onto the shoulder. The offending vehicle has then taken the Springfield Lakes exit and made his way down to the roundabout, situated at the bottom of the exit ramp. The vehicle has then proceeded to do laps around the roundabout before heading up Springfield Lakes Boulevard, in a westerly direction towards Springfield.”

18.     The non-indictable offences involved breaches of a Domestic Violence Order (“DVO”) taken out against the Applicant by his then partner, and mother of his children.  The facts of one of these offences states that the Applicant assaulted his partner in the presence of the children and the assault only ceased when the Applicant’s eldest daughter volunteered to go with the Applicant.

19.     Another of the breach of DVO offences reveals that the Applicant assaulted his partner then, while intoxicated and with his seven year old son in the car, drove at speed in an attempt to avoid police.

20.     In sentencing the Applicant, Richards DCJ said in relation to the driving offences:

“The offending is very serious.  You put members of the public at risk. In fact, damaged the vehicles of the members of the public, but Ms Hunt was so frightened she almost collapsed because of your behaviour. You were extremely drunk on that occasion, point 228. And it’s just very lucky that you didn’t kill yourself and kill others.”

And as to the breach of DVO offences, Her Honour said:

“In relation to the domestic violence breaches, you were placed on an order.  You were in Court when the order was made. You chose to ignore, not on one occasion but on three separate occasions. Two occasions involving violence to your partner. In my view, that’s also extremely serious, that you could just thumb your nose at an order.  Particularly at a time when you must have been on bail for the dangerous operation of a motor vehicle”.

21.     Reference was made by Richards DCJ to the Applicant being in Court when a DVO was made.  That comment refers to a conviction on 5 July 2010 for breaching a DVO.  On that occasion a fine of $400.00 was imposed.

22.     The above offences are serious, not only in respect of the stated facts of the offences and the sentences imposed, but also show, as stated by Richards DCJ, that the Applicant had thumbed his nose at a Court Order.  Paragraph 10.1.1(2) of Direction No.41 states assault is to be regarded as a serious offence.  This must be more aggravated in circumstances where the victim of the assault is a female who has resorted to a DVO in order to safeguard against such assaults.

23.     Paragraph 10.1.1(3) of Direction No.41 also provides that due regard must be given to the extent of the person’s criminal record, including the number and nature of offences, the period between offences and the time elapsed since the most recent offence.

24.     The Applicant arrived in Australia in May 2006. On 17 April 2008 he was convicted of assaulting a police officer and committing a public nuisance.  The Applicant disputed the facts of this offence and it may well be that the police on this occasion were heavy handed.  Suffice it to say the actions of the Applicant towards his partner on this occasion were sufficient to bring him to their attention.  Although his court appearance was not until 2010 the Applicant’s record of offences shows that he did commit the offence of wilful damage in November 2006, that is to say not long after arriving in Australia.

THE RISK THAT THE CONDUCT MIGHT BE REPEATED

25.     What is clear from the material before me and from what was said by Richards DCJ is that the Applicant has an enormous problem with alcohol.  Most, but not all, of his offences have involved him consuming alcohol.  As his former partner said in evidence that although domestic violence was part of their relationship it was only when he was drunk.

26.     Clinical Psychologist, Mr Taylor, not only interviewed the Applicant but also submitted him to a number of psychological tests.  His initial report is dated 9 April 2011.

27.     In his initial report, Mr Taylor was of the opinion that the Applicant suffered with Alcohol Abuse Disorder.  This then has the effect that if the Applicant abuses alcohol his self-control will be weakened and his judgement impaired, giving rise to short-sighted and impulsive behaviour.

28.     Mr Taylor initially rated the Applicant as having a low risk of recidivism in general but in cross examination, having more detail brought to his attention, modified his opinion so that he now regards the Applicant as having a low-moderate rate of recidivism.

29.     I note that two of the factors that influenced Mr Taylor’s original opinion now no longer exist, namely the support of the Applicant’s partner and the availability of employment.  Mr Taylor also conceded in cross examination that anger was a problem for the Applicant and his sense of perceived fairness could lead to the Applicant committing acts of retribution.

30.     According to Mr Taylor the Applicant indicated to him that he was willing to enter into a programme conducted by Mr Taylor to mitigate if not totally prevent his use of alcohol and to avoid reoffending.  As I see it whereas the Applicant may be motivated to enter into treatment for his Alcohol Abuse as Mr Taylor pointed out people with the best of intentions will suffer relapses.

31.     In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81, Davies J, sitting as President of this Tribunal said at N133:

“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to re-offend…and even if the risk of recidivism is not high the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.” (Authorities omitted).   

32.     As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198, that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far fetched or fanciful and that the degree of probability of its occurrence is quantitatively low.

33.     Compare the remarks of Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 51, namely:

“Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”.

WAS THE APPLICANT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

34.     The Applicant commenced living in Australia at the age of 29.  Prior to that time he had been raised by his extended family in Auckland, New Zealand.  In 2006 both the Applicant and his partner and their three children moved to Australia. 

INTERNATIONAL OBLIGATIONS

35.     The only potentially relevant international obligation in this matter is the Convention on the Rights of the Child. 

36.     Paragraph 10.4.1(4) of Direction 41 reads:

“Under Australian law, it is generally believed that a child’s best interests will be served if the child remains with its parents.  Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:

(a) …

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”

37.     Contrary to the Applicant’s initial belief, his former partner is now unwilling to continue her relationship with the Applicant and indeed has moved herself and the three children of the relationship to Western Australia (“WA”).  She stated it was her intention to remain there permanently.

38.     The Applicant, who has only recently been informed by his partner of her decision to end the relationship, has decided not to return to the Brisbane area where they previously resided together, but to remain in Sydney where he has been offered accommodation by a cousin.  I note that this will also enable him to attend Mr Taylor’s clinic to which reference has been made above.

39.     All three of the Applicant’s children have expressed a strong desire to be reunited with their father.  As Counsel for the Applicant pointed out, the Applicant could move to WA and thus be close to his children, although the relationship with his former partner no longer exists.  As I understand his former partner’s evidence, she would have no problems with this course.

40.     The Applicant’s eldest child is aged 12 years.  In evidence she expressed the strong desire that her father be permitted to remain in Australia, and it is obvious she has a very close relationship with him.

41.     Apparently his eldest daughter wants to live with her father.  Her mother has no problems with this course whether her daughter lives with her father in Australia or New Zealand.  Likewise the daughter is prepared to move to New Zealand to be with her father.  Their mother has no objections to the other two children visiting their father in New Zealand.

42.     Cross examined, the Applicant’s former partner stated that she had decided to separate from the Applicant as all they seemed to do was argue around the kids and it was not healthy for them.  She admitted that starting in 2001 the Applicant had been violent towards her and that when he was drunk the Applicant hit her in front of the children.

43.     It is generally presumed that the best interests of a child will be if he or she, if not with both parents, maintains a meaningful relationship with the non-custodial parent.  Obviously this would be best fostered if both parents are in Australia.

44.     Notwithstanding the desirability of the children maintaining contact with the Applicant, a factor to be taken into account is the domestic violence that occurred between the Applicant and his former partner, some of which was in the presence of the children.  As Rares J said in Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at paragraph 24:

“A child who witnesses violent behaviour by one parent, or member of the household, to another has been placed in a situation by that violence that is relevant for the purposes of a decision-maker considering the impact on a person’s claim for an entitlement to retain his or her visa for the purposes of Direction 41.  That would appear to be a matter, among others, that goes to the best interests of the child in this case…”

45.     In any event, as stated above, his former partner is willing to permit the children to visit the Applicant in New Zealand (and in the case of the eldest daughter, to live there with him).  No doubt the Applicant will be able to maintain telephone contact with his children.  In many ways, there is little difference between the Applicant residing in New Zealand and his continuing to reside in Sydney if the children, as appears to be their mother’s intention, continue to reside in WA.

OTHER CONSIDERATIONS:

46.     Direction No.41 lists at paragraph 11(3) seven other non-primary considerations that might be taken into account in considering whether to cancel a visa.

47.     Family ties, the nature and extent of any relationships: The Applicant’s father now resides in Brisbane and since the Applicant was imprisoned he has been cared for the by Applicant’s brother.  The Applicant’s mother still resides in New Zealand.  No doubt the Applicant’s brother and father will suffer distress if the Applicant’s visa is cancelled, and support for the father will be entirely met by the Applicant’s brother.  If however the Applicant obtains employment in New Zealand, no doubt he can offer financial support to his father.

48.     There is no evidence as to the depth of relationship with other members of the Applicant’s extended family in Australia.

49.     The Applicant’s age and health do not raise any impediments to his deportation.

50.     Links to the country to which the Applicant would be removed:  The Applicant is a citizen of New Zealand and lived there until the age of 29.  He has qualifications for ground staff work with aircraft and was employed in this field before coming to Australia.

51.     Hardship to the Applicant or his immediate family:  The Applicant’s former partner and children are New Zealand citizens so would be able to travel or reside in New Zealand.  The Applicant’s mother still resides in New Zealand and he has other relatives both in New Zealand and Samoa.

52.     The Applicant, prior to being imprisoned, had not been warned that he was at risk of visa cancellation.

53.     Having regard to the material that was placed before me, I accept that the Applicant’s children would prefer him to remain in Australia and that whilst sober he is a good and loving father, but I do not consider that their best interests, particularly taking into account the separation of his partner from the Applicant and the instances of domestic violence witnesses by the children, outweighs the potential harm to the community as assessed in the light of both the probability of harm occurring and the nature of that harm, namely being either violence or risk-taking behaviour with the potential for harm to others.

54.     The Decision under Review is AFFIRMED.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         .............[sgd]..........................
  K. Lynch, Associate

Dates of Hearing   20 April 2011
Date of Decision   09 May 2011
Counsel for the Applicant           Ms M Tibbey
Solicitor for the Applicant            Legal Aid Commission
Solicitor for the Respondent       Mr L Leerdam, DLA Phillips Fox.