Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 505
•31 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/80
GENERAL ADMINISTRATIVE DIVISION ) Re PHILLIP WINETI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date31 May 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that:
(a) the discretion under s 501(2) not to cancel Mr Wineti’s visa be exercised in favour of Mr Wineti; and
(b) Mr Wineti be formally warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Class TY sub-class 444 visa - decision not to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 21 - primary and other considerations - meaning of “home invasion” - whether other considerations can outweigh primary considerations - applicant moved interstate to seek employment and start new life - best interests of child - decision under review set aside.
Migration Act 1958, s 501(2)
Re Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs [2002] 118 FCR 326
Re Bustescu and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 829
Re Cong Tam Dang and Minister for Immigration and Multicultural and Indigenous Affairs [1998] AATA 421
Re Gallegos and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1160
REASONS FOR DECISION
31 May 2005 Deputy President D G Jarvis 1. The applicant, Phillip Ronald Wineti, came to Australia with his parents when they migrated to Australia with their five children in 1996.
2. On 15 December 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel Mr Wineti’s visa on the grounds that Mr Wineti did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). Mr Wineti had been the holder of a Class TY sub-class 444 visa. The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the visa. Mr Wineti has applied to this Tribunal for review of the delegate’s decision.
Issues for the Tribunal
3. The Statement of Facts, Issues and Contentions lodged on behalf of Mr Wineti includes a concession that he does not pass the character test under s 501 of the Act. This could not have been contested in any event, because under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c), a person is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more. Mr Wineti was sentenced to terms of imprisonment for terms exceeding this period on 15 January 2001.
4. There is a discretion under s 501(2) of the Act not to cancel a visa. The only issue before the Tribunal is whether the discretion not to cancel Mr Wineti’s visa should be exercised in his favour.
Background Evidence
5. I make the following findings from the evidence of Mr Wineti, witness statements which were tendered by consent, and the documentary material before me. I accept Mr Wineti’s evidence except where otherwise stated in these reasons.
6. Mr Wineti was born on 7 April 1981 in New Zealand and is a New Zealand citizen. He went to school in New Zealand as far as the equivalent of Year 11 in Australia. His family moved to Australia when he was 15 years old, because his father was able to earn twice as much in Australia as he had in New Zealand.
7. The family lived in Karratha in Western Australia, where Mr Wineti’s father had obtained employment. Mr Wineti went to school for one term in Australia. He was then offered a job and left school at the age of sixteen years.
8. A list showing the employers for whom Mr Wineti has worked, the dates and places where he worked, and the type of work he did is attached to his witness statement (exhibit A1). This shows that he had a number of different employers between June 1997 and October 1999. He was then in prison from 4 October 2000 until March 2001, and was unemployed and on social security benefits from March 2001 until February 2002. He had moved to Melbourne in September 2001, and has lived there for most of the time since then. Since February 2002 he has remained in employment, working for various employers through an employment agency, until March 2005, when he was put into immigration detention.
9. Mr Wineti’s father is forty-six years of age, his mother is forty-two, and he has four younger sisters, Sara aged twenty-one, Amy aged nineteen, Rachel aged seventeen, and Tui aged thirteen.
10. Mr Wineti has never been married, but is the father of Kheanon Hetaraka, who was born on 13 March 2002. Kheanon’s mother, Sheyna Hetaraka, is twenty-six years old, and came to Australia from New Zealand when she was three. She has two elder children by other relationships. Many of Mr Wineti’s extended family also live in Australia.
11. While Mr Wineti was in gaol, he did some TAFE engineering certificates and gained certificates of competence in occupational health and safety, performing brazing and silver soldering, using hand and power tools, performing routine manual arc and/or gas metal arc-welding, and performing routine oxy-acetylene welding. Mr Wineti produced the certificates, or photocopies of them, to evidence his success in obtaining the competencies in question. After he was released from gaol he obtained a fork lift licence and obtained work utilising that licence.
12. Mr Wineti has the following convictions for which he was sentenced to terms of imprisonment.
(a)On 15 January 2001, he was convicted in the Bunbury District Court, Western Australia of two counts of aggravated burglary (place of habitation), one count of attempted aggravated burglary (place of habitation), and two further counts of aggravated burglary from commercial premises. He was sentenced to fifteen months’ imprisonment on each of the above offences, to be served concurrently.
(b)At the same hearing on 15 January 2001 he was convicted of one count of damaging property, one count of making a false statement to obtain bail, and two counts of giving a false name and/or address. He was sentenced to two months’ imprisonment on each of these counts, to be served cumulatively with the sentence of fifteen months referred to in paragraph (a) above.
(c)On 25 January 2001, he was convicted by the Bunbury Court of Petty Sessions of common assault and sentenced to three months’ imprisonment, apparently to be served concurrently with the terms referred to in paragraphs (a) and (b) above.
13. In addition, the applicant has been convicted of the following offences.
(a)On 28 January 1999, he was convicted by the Children’s Court in Karratha, Western Australia, of cannabis possession, and no punishment was imposed.
(b)On 19 October 1999, he was convicted by the Court of Petty Sessions at Karratha with one count of receiving, and was sentenced to a six month Conditional Release Order, and fined $100.
(c)On 13 July 2001, he was convicted by a court in Bunbury of driving without a licence, and his licence was cancelled and he was disqualified from holding a licence for three months and fined $300.
Legislation
14. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
15. Subsection 501(2) provides as follows:
“(2) 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.”
Consideration of Ministerial Direction No. 21
16. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a Direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
17. The three primary considerations in Direction No. 21 are as follows:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
18. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
19. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
20. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The examples include assault, and the applicant’s conviction on 25 January 2001 for common assault therefore constitutes an offence regarded by the Government as very serious.
21. The examples in paragraph 2.6 of the Direction also include home invasion. The expression “home invasion” is not defined. Various Acts of the States and territories of Australia create the offence commonly referred to as house breaking. Those Acts generally make provision for circumstances which render house breaking offences aggravated offences, and impose increased penalties for such aggravated offences. However, they do not use the expression “home invasion”.
22. The revised third edition of the Macquarie Dictionary gives the meaning “the holding up of a family in their home” to the words “home invasion”. These words were not included in the second edition of the dictionary, which was published in 1991. The on-line edition of the Oxford English Dictionary records that the term originated in the United States of America, and means “(a)n act of entering a private dwelling while it is occupied, with the intention of committing a crime (usually burglary, often while threatening the resident); the action or offence of doing this”. The most helpful references to the meaning of the words that I have found are contained in the 1999 report of the South Australian Office of Crime Statistics and Research. This traces the origins of the use of the expression “home invasion” in Australia, and also includes a number of definitions of the expression which are used by other organisations or groups. The report then continues:
“In summary, ‘home invasion’ seems to be understood, at the very least, as an incident involving unlawful entry into a house with intent to commit a crime, when the occupants are at home. Most references to ‘home invasion’ also include one or both of the following elements:
·some type of confrontation between offender(s) and occupants(s), involving violence (or the threat of violence) against the occupant(s); and
·removal (or attempted removal) of property from the home.
In addition, there appears to be a general public perception that ‘home invasion’ involves an intruder who is not known to the victim.”
23. The expression is included in Butterworth’s Australian Legal Dictionary, where “home invasion” is defined as:
“Colloquially, a term referring to offences such as armed robbery and assault, generally committed by more than one person, and involving the forcible entry into the home of another person for the purpose of committing such offences.”
24. In his second reading speech when introducing the Criminal Law Consolidation (Serious Criminal Trespass) Amendment Bill 1999 (South Australia) the South Australian Minister for Industry and Trade referred to “an escalating pattern of crimes reported and discussed in the media as ‘home invasions’”. He then said:
“These might generally be described as criminal incidents in which intruders force entry into an occupied dwelling and then commit one or more further crimes in the dwelling when occupants are lawfully present and particularly when those offences are committed against those occupants personally. It is difficult to be more precise than that general description because, at the margins, what is and what is not ‘home invasion’ is difficult to define.
25. The above definitions are helpful, and are consistent with the factual situations which were regarded as home invasions in earlier Tribunal decisions, such as Re Bustescu and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 829 at [29] to [31], Re Cong Tam Dang and Minister for Immigration and Multicultural and Indigenous Affairs [1998] AATA 421 at [9] and Re Gallegos and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1160 at [7].
26. I conclude that for the purposes of the Direction, a “home invasion” occurs when an intruder enters a dwelling by force or coercion at a time when one or more of its occupants is present, and the intruder(s) intend to commit or actually commit one or more further offences, such as larceny or attempted larceny of property from the home, or there is a confrontation between the intruder(s) and the occupant(s), involving violence or threat of violence against the occupant(s), or damage or threat of damage to the home or property within it.
27. In the present matter one of the four aggravated burglaries of which the applicant was convicted might have constituted a home invasion. This was the offence committed on 4 October 2000, when he broke into the Bussell Motor Inn at Bunbury. In his witness statement (exhibit A1), the applicant said:
“When I was coming out of (this hotel) the manager of that place saw me, and rushed up to me. He must have been in the hotel. He came out of a room and was dressed like he had been sleeping so I presume that he lived in one or more of the rooms there … I swung a bag of the bottles that I had just stolen at him. It hit him in the shoulder. He grabbed my throat and then I hit him three times in the face. He was swinging at me too. He went down. He dragged me down with him. I managed to get up, and I took off … .”
From this information, it appears likely that the manager lived in the hotel. However, the applicant and his accomplices apparently broke into a part of the premises where liquor was stored or sold, and not a part of the premises where anyone lived. It is therefore doubtful whether this offence could be described as a “home invasion”. There is no suggestion that anyone was in occupation of the other premises which were broken into, and so none of the other convictions for aggravated burglary constituted home invasion.
28. Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime, and (by virtue of paragraph 2.8(a)) any relevant mitigating factors. Counsel for the respondent, Mr Prince, argued that the offences were serious. The first three charges relating to domestic premises had occurred in February 2002, and the last two burglaries involving commercial premises had occurred in October 2000. Mr Prince drew attention to the sentencing remarks of District Court Judge Charters who recorded the convictions in the Bunbury Court on 15 January 2001. His Honour expressed concern that the first count related to the stealing of firearms, and they had not been located. He said that the applicant either would not or could not tell the Court where the firearms were or to whom they had been sold. The Judge further pointed out that the two burglaries involving commercial premises had been committed whilst the applicant was on bail for the first two charges of aggravated burglary and the charge of attempted aggravated burglary, and that that was a matter of great concern. His Honour also pointed out that when the applicant was interviewed by an officer from the Community Corrections Service, he refused to be involved in any kind of community service order. The Judge went on to say:
“I am not at all impressed with your attitude, your co-operation with authority, and in particular, of course to offending whilst you were on bail … Notwithstanding that you’re 19 years of age and notwithstanding that you have an insignificant record, the offending is very serious indeed … .” (exhibit R1, page 38)
29. In his witness statement, the applicant admitted breaking into a house with a friend, and said that they were looking for money. He said there was a gun cabinet in the house and his friend was interested in firearms, and his friend stole one 12 gauge shotgun and a rifle. He said that he (the applicant) had nothing to do with taking the guns, and it was his friend’s idea. He said he did not know where the firearms went.
30. The applicant further said in his witness statement that he was drunk at the time of the burglaries which occurred in February 2000, and he could not remember the second domestic burglary; however, he pleaded guilty even though he could not remember anything about this offence. He said he was desperate to get money to buy alcohol and food, because he was not working then and his unemployment benefits were being cut off because he was not looking for work.
31. Mr Wineti also gave evidence that he was drunk on each occasion when he committed the other offences dealt with at the Bunbury Court on 15 January 2001. He said at the time of the burglaries of the two hotels, he and four or five other men had all got drunk, possibly in a park, and whilst he could not remember much about the offences, he thought they must have decided to get some more alcohol, and they were looking to steal alcohol, not money. He admitted giving false names to the police after he had been arrested, and said that on the first occasion when this happened, he did this so that he could get the police bail.
32. Notwithstanding the explanation as to the circumstances in which the offences occurred, and notwithstanding that at least four and probably also the fifth of the burglary offences did not constitute “home invasion”, I regard the offences as serious. The sentences which were imposed also indicate that the Court regarded them as serious, and indeed that is how the Sentencing Judge described them.
33. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
34. Counsel for the respondent, Mr Prince, submitted that Mr Wineti had been guilty of serious offending, that the assault and the two aggravated burglaries of commercial premises had occurred while Mr Wineti was on bail, and he had given false information to the police after he was arrested. Further, he was convicted of driving whilst unlicensed after his release from gaol, and that for all of these reasons, there was a moderate risk of re-offending.
35. As mentioned above, the applicant claims that he was drunk when the burglary offences took place. He said that he had no job and no money, and other people with whom he was associating at that time were also drinking a lot and not working. He was living in a caravan park at the time and was a long way away from his family.
36. During his time in gaol, the applicant took the opportunity to obtain the TAFE certificates of competence to which I have referred above. He also did a drug and alcohol course and attained a certificate certifying that he had completed the relevant unit of that course. He said in his witness statement that he thought that that really helped him to understand that his alcohol abuse had led him to prison, and to understand that he did have a problem. He said he learnt how to set goals and work towards them. He also received encouragement from his family to do the right thing when he was discharged from gaol.
37. The applicant was released from gaol after serving about five and one half months in custody (although this does not detract from the significance of the length of the term of imprisonment to which he was sentenced: Re Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588 at [13]). After his release, in September 2001, he moved to Melbourne, partly because he thought that there would be more opportunities for him to get work in Melbourne, and partly so that he would avoid coming in contact with the persons with whom he had previously been associating. Except for an initial period of about five months when he was without work, he has been continually employed since moving to Melbourne. He said that if he is released from immigration detention he would be able to resume work which he had done before his detention at Smorgon Straightening. This has been confirmed in a witness statement from a team leader at that company, one George Vahua, who said that if Mr Wineti tells him that he is available for work, he would be able to start work with that company the next day. Mr Vahua said that Mr Wineti had worked under him and had impressed him by his work; Mr Wineti had proved himself to be a good worker, was reliable and he was the sort of person they wanted. (Exhibit A15).
38. The applicant further said that since he was discharged from gaol, he hardly ever drinks, and only does so on special occasions such as birthdays, about once every three months. His parents provided witness statements in which they confirmed that the applicant has matured considerably in the last couple of years, and appears to be a good employee and responsible, and they have seen no evidence of his drinking to excess since his release from prison.
39. The applicant’s last offence, that of driving whilst his licence was suspended, took place after his discharge from gaol. He said that a friend was going to drive home from a hotel but was really drunk, and the applicant was driving him home when he was stopped by the police. He said that he had not been aware at the time that his own licence had been suspended.
40. Counsel for Mr Wineti, Ms Nunan, pointed out that his main offending took place over a period of eight months between February and October 2000, and that he has now been out of gaol for more than four years and his only offence in that period was the driving offence. which was committed in the circumstances referred to above. Ms Nunan submitted that the risk of recidivism is very low in this matter. I agree with this submission, in view of the applicant’s good conduct over the last four years, and the various matters referred to in paragraphs 35 to 38 above.
41. General Deterrence The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any cancellation of a visa. In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of the applicant, and may provide some deterrence to other persons. Further, the fact of cancellation would put the respondent in a position where the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) could point to an established precedent and, indeed, it could give some publicity to this precedent if this became necessary. However, there is no evidence that the general deterrent effect would be significant if the cancellation of the applicant’s visa is confirmed, and I attach little weight to this aspect.
Second Primary Consideration – Expectations of the Australian Community
42. This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
43. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr Prince drew attention to the pattern of the applicant’s offending, and the matters referred to in paragraph 34 above. He submitted that the Australian community would expect to be protected against offending of the kind committed by the applicant.
44. As against those submissions, I take into account that the circumstances in which Mr Wineti’s offending apparently occurred (namely his heavy drinking, his being out of work and without any means of support, and his association at a young age with irresponsible persons) are no longer applicable. He has made a new life in Melbourne, has been in regular employment there, and has not offended since being released from gaol, except for the one driving offence in 2001 to which I have referred above. Having regard to these considerations, I think that the community would not think it appropriate for the applicant to be prevented from continuing his life in Australia. Instead, I think that the Australian community would expect Mr Wineti to be given a further opportunity to continue along his current course of rehabilitation, and to have the chance to be a responsible, law-abiding citizen and to make a contribution to the community.
Third Primary Consideration – Best Interests of a Child or Children
45. Paragraph 2.15 states that, in general terms, the best interests of a child of the non-resident will be served by remaining with his or her parents. When assessing this consideration, decision-makers are directed by paragraph 2.16 to have regard, amongst other things, to the nature of the relationship between the child and the non-citizen (2.16(a)); the duration of their relationship and number and length of any separations (2.16(b)); the age and migration status of the child (2.16(c) and (d)); the likely effect of separation (2.16(e)); the time the child has spent in Australia (2.16(g)); the circumstances of the receiving country (2.16(h)); and any language and cultural barriers that may be encountered in the probable country of future residence (2.16(i) and (j)).
46. I have referred above to Mr Wineti’s son. He lives with his mother. Mr Wineti gave evidence that when his son was six weeks’ old his mother, Ms Hetaraka, brought him to Melbourne and stayed with him for a period which in evidence he said was two months, but which according to his witness statement was four weeks. Mr Wineti gave evidence of further visits by Ms Hetaraka to Melbourne for varying periods, and of his visiting her in Bunbury later in 2003 and most recently, for a week over Christmas 2004.
47. Ms Hetaraka provided a witness statement which was admitted by consent and without her being required for cross-examination. She confirmed that she had been to Melbourne with Kheanon about four or five times over the last three years, staying for six weeks for the first time and for about a month on the other occasions. She said that she and her son saw a lot of Mr Wineti during each of those visits. She also said that Mr Wineti has given every indication that he wants to remain in Kheanon’s life and to be a real father to him; and whilst she thinks that she will primarily be responsible for looking after Kheanon for quite a long time, she is happy to let Mr Wineti have as much access to Kheanon as he would like, and she wants him to continue to be involved in Kheanon’s upbringing, and thinks he is a good father.
48. Mr Wineti’s evidence as to the dates and periods of the visits when he saw his son was confused and inconsistent in some respects with his witness statement and with Ms Hetaraka’s statement. I do not accept his evidence as to the dates and periods of the visits. Nevertheless, both he and Ms Hetaraka have confirmed that there has been reasonably regular and significant ongoing contact between the applicant and his son, and I accept that this is the case. The applicant said further that he has given Ms Hetaraka money to help her on a regular basis, that he telephones Kheanon’s mother regularly, and also speaks to Kheanon. He also said that he wants to keep in contact with Kheanon, and to take part in his upbringing.
49. Witness statements from Mr Wineti’s parents indicate that there was a good relationship between him and his son, Kheanon, when Mr Wineti came to Bunbury over Christmas. They also said that they normally see Kheanon at least once a week, and have him to stay sometimes. Statements from each of Mr Wineti’s sisters were also received in evidence by consent, and were consistent with the evidence provided by the applicant, his parents and Ms Hetaraka, to the extent that they were able to deal with relevant matters.
50. Mr Prince pointed out that when Mr Wineti made submissions to DIMIA he did not refer to his son, but only to his parents and siblings. He was cross-examined about this, and explained in effect that he thought that the possible cancellation of his visa was to do with his criminal history and that it should not involve his son. It appears that he made submissions to DIMIA without obtaining any professional or other assistance, and I do not think that his failure to mention his son in responding to DIMIA’s letter diminishes the evidence before me as to the nature of the continuing relationship he has had with his son, or the importance to date of that relationship.
51. Even though the applicant and his son live far apart, they have been able to maintain reasonably regular contact. I think that ongoing contact would become more difficult if Mr Wineti’s visa remained cancelled and he was forced to return to New Zealand. On the evidence before me, his prospects of employment in New Zealand are likely to be more difficult than in Melbourne, and this (quite apart from his own inability to return to Australia to see his son) would impact on his continuing to have contact with Kheanon, because it would affect his ability to fund visits to New Zealand by Kheanon. Difficulty in obtaining employment would also affect his ability to provide financial assistance for the upbringing of his son. I conclude that it would be in the best interests of the applicant’s son if his visa were not to be cancelled.
Other Considerations
52. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
53. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the respondent by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant: see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs [2002] 118 FCR 326). It appears likely that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 was amended to include the word “generally”, whereas the corresponding paragraph of the predecessor of the current Direction, namely Direction No. 17, omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
54. I have concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
55. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community.
56. Mr Wineti’s son, his parents and his sisters all live in Bunbury. When he returns there, he can see all of his immediate family. If the visa cancellation is confirmed, he will be unable to come to Australia to visit his immediate family, and contact with them would be dependent on family members visiting him. It is reasonable to conclude that this would substantially reduce the opportunities for Mr Wineti to keep in touch with his immediate family, and would lead to disruption to his family. A number of members of his extended family also live in Australia, and his opportunity of remaining in contact with them would also be prejudiced if the visa cancellation is confirmed. However, I place less weight on this aspect, because it was not suggested that the applicant has a very close relationship with members of his extended family.
57. Paragraph 2.17(b) of the Direction refers to “genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen”. The applicant has never lived in a de facto relationship with Ms Hetaraka, and this consideration is not therefore applicable. Nevertheless, the list of subparagraphs of paragraph 2.17 of the Direction is expressed to be inclusive, not exhaustive, and the continuing relationship between the applicant and Ms Hetaraka and between her and his parents and sisters is of relevance to the ability of the applicant to remain in touch with his son and participate in his upbringing.
58. Paragraph 2.17(c) refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere.
59. There was no evidence before me of the comparative costs of airfares, and Ms Nunan abandoned any argument that it would be more expensive for immediate family members to travel to New Zealand rather than to Melbourne to visit the applicant. However, as already mentioned, the applicant’s son is partially dependent on the applicant, in view of the financial assistance he has provided in the past to Ms Hetaraka. The applicant said further that the job market is not good in New Zealand where his extended family live and he would find it hard to find a job, and even if he could, the money is “terrible” (exhibit A1, paragraph 62). As I have also mentioned above, it is likely that the applicant’s ability to provide ongoing support for his son would be prejudiced, at least to an extent, if he were removed from Australia and returned to New Zealand.
60. Paragraph 2.17(d) of the Direction requires me to consider the family composition of the applicant’s family, both in Australia and overseas. I have already referred to the composition of his family in Australia. All of his immediate family and most of his extended family live in Australia. He said he has had very little to do with his family in New Zealand. According to his witness statement, he has cousins who live in small country towns in New Zealand. If he had to return to New Zealand, he had expected to be able to stay with one of his cousins there, but has since found out that this would not be possible.
61. Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). There is evidence of these matters in this case (see paragraphs 36 to 38 and 40 above). This consideration is favourable to the applicant.
62. The final consideration under this heading is that referred to in paragraph 2.17(k) of the Direction, namely that the applicant has been formally advised in the past by an officer of DIMIA about conduct which brought him within the cancellation provisions of s 501 of the Act. There is no evidence that the applicant received any warning from DIMIA prior to the conduct which gave rise to the cancellation of his visa.
Conclusion
63. I have had careful regard to the considerations set out in the Direction. I am mindful that the applicant has committed a number of serious crimes, some of which were committed when he was on bail for previous similar offending. However, only one, and possibly two, of his convictions was for an offence included in the list of offences in paragraph 2.6 of the Direction which are considered to be very serious offences. Further, the seriousness of the applicant’s offending is mitigated by the fact that it took place over a comparatively short period when he was young, and affected by circumstances which no longer apply. He has overcome his drinking problem, has started a new life in Melbourne, has obtained work on a regular basis, and has been of good behaviour over the last four years. In my view, the protection of the Australian community, and members of the community, would not suggest that he should be removed from Australia.
64. For the reasons to which I have already referred, my assessment of the expectations of the Australian community would indicate that the discretion not to cancel the visa should be exercised in his favour. I make a similar assessment when considering the best interests of the applicant’s son, and such of the “other considerations” as are relevant in this matter.
65. The applicant has provided very much more information to this Tribunal that was available to the delegate who made the original decision in this matter. After considering all the evidence before me and balancing all of the relevant considerations in the Direction, I have decided that it is appropriate to exercise the discretion under s 501(2) of the Act in the applicant’s favour. Nevertheless the applicant should be made aware of the grave consequences of his conduct to his situation as a non-citizen. I think it appropriate that DIMIA should now formally advise him of the relevance of this conduct to the provisions of the Act relating to the cancellation of visas.
Decision
66. I set aside the decision under review and remit the matter to the respondent for further consideration, and direct that:
(a)the discretion under s 501(2) not to cancel Mr Wineti’s visa be exercised in favour of Mr Wineti; and
(b)Mr Wineti be formally warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.
I certify that the 66 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 12 May 2005
Date of Decision 31 May 2005
Counsel for the Applicant Ms J Nunan
Solicitor for the Applicant Jane Nunan & Associates
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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