Rimoni and Minister for Immigration and Citizenship

[2008] AATA 761

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 761

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1244

GENERAL ADMINISTRATIVE DIVISION        )

Re             Scotty Sakoti RIMONI

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date28 August 2008

PlaceSydney

DecisionThe decision under review is set aside.

………………[sgd]…………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – substantial criminal record – character test conceded – community protection and expectations considered – best interests of the children – other considerations – best interests of the children outweigh community protection and expectations in this case – decision under review is set aside.

…

RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501

CITATIONS

Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Green v Minister for Immigration and Citizenship [2008] FCA 125

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

Al-Kateb v Godwin (2004) 219 CLR 562

Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Re Vo and Minister for Immigration and Citizenship [2007] AATA 1465

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OTHER AUTHORITIES

Direction No 21

Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43

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REASONS FOR DECISION

28 August 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Scotty Sakoti Rimoni was born in June 1981 in New Zealand and is a citizen of that country.  He has never been married and is not currently in a de facto relationship.

2.      On arrival in Australia on 7 September 1995 he was granted a special category class TY subclass 444 visa.

3.      His first appearance in the criminal courts was in Cobham Children’s Court on 8 December 1998 when he was convicted and fined for intimidating a police officer.

4.      His other criminal offences include the following:

§Convicted of robbery in company on 29 March 2001 and sentenced to four years' imprisonment with a non-parole period of two years;

§While on parole for that offence, he was convicted of a number of driving offences on 31 March 2005, fined $1,700 and disqualified for two years;

§On 6 September 2005, he was convicted of robbery in company while armed with a dangerous weapon and sentenced to three years and six months imprisonment with a non-parole period of two years and eight months.

§As a result of the driving convictions, on 25 February 2005 the New South Wales parole authority revoked his parole and he was ordered to serve the balance of his original sentence, being one year, five months and 16 days.  While serving that sentence, he was sentenced to the term of imprisonment that he is currently serving on 6 September 2005.

5. On 14 July 2006, his TY 444 visa was cancelled under s 501(2) of the Migration Act 1958 (Cth) (the Act). Subsequently, on 8 February 2007, he was informed that his case had been identified as similar to that which was the subject of the decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807.

6.      His visa was then cancelled by a delegate of the minister on 10 March 2008.  He appealed to this tribunal for review of that decision on 25 March 2008.

7.      At the hearing, the applicant was represented by Ms Mandy Tibbey of counsel, while Mr Avenish Chand of Clayton Utz appeared for the respondent.  The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing.  The applicant, Ms Esme Mahe, Mr Telo Rimoni, Mrs Asiasiga Rimoni and Ms Ann Vlotis gave oral evidence in person and Mr John Taylor gave oral evidence by telephone.

Issue

8.      As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

9. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

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

…

(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; …

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10.     “Substantial criminal record “ is defined in s 501(7)

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

…

11.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

12.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The applicant’s evidence

13.     In his detailed affidavit dated 21 July 2008 (Exhibit A3) the applicant said that if released he could live with his parents.  He has a close relationship with his sister Melissa aged 14, who used to visit him when he was in jail at Cessnock about every two months, and at Long Bay every two weeks.  All his family is now living in Sydney and he has no family overseas.

14.     Shortly after his arrival in Australia in 1995, he met Esme Mahe, and when he was 15 she had his daughter, Destiny, now aged 14.  Esme terminated the relationship when he was imprisoned for the second time and returned to Tonga with Destiny, returning to Australia in 2008.  He stated that if released from detention, “I intend to see if I can work things out with Esme.  Even if we cannot get back together I want to see as much of the kids as possible and provide them with financial and emotional support”.  Esme also has two sons with another man.

15.     He believes his parents would allow him to live with them until he found a place of his own with Esme.

16.     In about 2004 he met his second de facto partner, Lupe Alofa and they had one daughter, Jadalen, born 18 November 2004.

17.     As Lupe’s parents did not approve of the relationship, she and Jadalen spent a good deal of time at his parents’ house.  At the time, Jadalen did not know who the applicant was, but now she does.

18.     The applicant and Lupe subsequently separated, but they are still on civil terms and he did not believe Lupe would ever prevent him from seeing Jadalen.  He intends to support her if he is released from custody and to play a part in her life.

19.     After leaving school he had worked hard at a number of jobs, starting with a position as ride tester at Luna Park for about nine months in 1999 to 2000.  Later he held a casual part-time labouring job at Baiada chicken factory.  He did not mind working hard, because at that time he had a young daughter to support.  He had to work in two jobs to support his parents, who were not working at the time because in Tokelauan culture, a boy aged over 18 is expected to look after his parents.  He had mostly worked as a labourer and most of the positions were short-term.

20.     While in jail he undertook a number of courses to improve his employment prospects, including building construction and a Pacific Islander music course, as well as a personal trainer course.  If released he believes he will be able to obtain employment at the Colorbond factory at St Mary's.  He has no intention of re-offending if released, and believes Esme is a strong emotional support for him.  She is working in a nursing home.

21.     Since arriving in Australia his family has been heavily involved with the church at Mount Druitt.  He used to attend church every two weeks with his parents and assist as much as he could.  He attended Bible study classes and took care of the younger children in activities.  He played in the church band and if released would like to undertake a musical career.  He is also actively involved in a number of sports.

22.     He committed his first offence because he was young and foolish.  At the time of his second offence he already had a daughter but had been released from prison and was unemployed.  He now feels sympathy for the victims of his crimes.

23.     He has done everything he could in order to better himself.  He undertook courses and rehabilitation programs in jail, including a Robberies Rehabilitation course with a counsellor named Nicole.  If released he would move in with his parents because they have left Doonside, where all his problems and his old friends were.

24.     The courses he undertook helped him to notice the risk factors and to say no to his friends and yes to his parents.  They have helped him to start a new chapter in his life with his children.

25.     While at Cessnock he joined the Kairos church group and undertook an intensive bible study course that lasted about five days.  He also attended chapel weekly.

26.     After his last prison sentence he feels more mature.  His long-term plans are to marry Esme and to obtain a house for the family.  He would do whatever they want to do and intends to take care of his parents and his young sister.

27.     In oral evidence the applicant said that while at Cessnock Correctional Centre he had a C2 (low risk) classification for a short time, performing grounds maintenance outside the fenced area, but that was later changed to C1 when he was found to have failed the character test.  He had no disciplinary breaches between 2002 and 2006.  While working in the kitchen in 2006, however, he had forgotten to take out his bed sheets and was penalised for it.

28.     His ambition was to support his family and to work at Colorbond, where he has an offer of employment.  He is close to his parents and sister, and personally nurtured his daughter Destiny until he was jailed (he could not recall how old she was at that time).  She is now in Tonga with her grandparents and he would have to get her over here because he wanted to be part of her life.  He was back with Esme, who returned to Australia from Tonga two weeks before he was released.  They hoped to marry.

29.     His daughter Jadalen, now aged four, saw him when he was in jail but he now telephones her nightly from Villawood.  He would want to have a relationship with her also because he had spent most of his life away from his children.

30.     He was now on good terms with Jadalen’s mother, Lupe, who is content for him to be involved with Jadalen.

31.     Originally he had thought that he had two other children, Devlin and Durante, with a woman named Tanya, with whom he had a brief relationship, but Tanya had recently told him that he was not the children’s father.  He was not convinced, however, and wished to obtain DNA testing to ascertain whether that was in fact the case.  He had provided financial support for all the children but at that time did not have the qualifications to make a substantial contribution, although he gave Esme or the other mothers most of his pay.

32.     He believed the Tokelauan community, which is based in the St Mary's area, would help with his rehabilitation.  Having children had made a difference to his outlook and he wanted to become involved with the church and with music.  Previously he had not been an active churchgoer.  He had been in bad company since high school, but now knew what was right and wrong and would avoid wrongdoing.

33.     In cross-examination he said that the robbery in 2000 was committed when he and his co-offender had shared half a bottle of bourbon.  He was tipsy at the time but knew what he was doing.  There was no plan, but his friend had asked him if he was with him, meaning whether he trusted him, and pointed to the newsagency that they robbed.  When they were inside, he had grabbed the proprietress because she was attempting to run out of the shop.

34.     While in jail for that offence, he used marijuana but alcohol was unobtainable.  When released he stayed with his mother as before and had wanted to obey the law, but was still young.  He had undertaken an Islander course and had become involved in music, receiving his parents’ support, but his parole had been stopped and he had been sent back to jail because he had a traffic accident while drink driving.

35.     He had not been drinking at the time of the second robbery in 2004.  He was involved with five others, who met at the gymnasium.  He was offered $50,000 to commit the offence by obtaining boxes of Sudafed.  He was not himself armed but another was carrying a samurai sword and the customers were terrified.  They took the boxes as planned, but he received only $50 for his part in the offence.

36.     While in prison on that occasion, he had completed courses such as anger management, parenting, the Phoenix program and had participated in an Armed Robbers Prevention group.

37.     Esme had returned to Tonga to be with her parents, taking Destiny with her.  She returned to Sydney on 1 May 2008 but did not bring Destiny with her.  He did not know why, but thought that Esme would have had her reasons.  She had sent him photographs, however, and he had talked on the telephone with Destiny about every two weeks.  He had last seen Jadalen in 2005 but spoke to her on the telephone every night.  He later said that she had in fact visited him at Silverwater.  Destiny had not visited him at Villawood, but had come to see him once or twice at Long Bay.

Applicant's supporting witnesses

38.     The applicant’s father Mr Telo Rimoni in his written statement (Exhibit A4) and oral evidence, described the hardship he had endured as a result of being separated from the applicant.  He had a close relationship with him, and the applicant also had close relations with the extended family and with his sister Melissa.

39.     If the applicant were released he would do his best to support him.  He could stay with him and his wife at their house.  Mr Rimoni said he is a deacon at the Congregational Christian Church of Tokelau and hoped that the applicant would be active in the church and in Sunday activities.

40.     He said the applicant was a very decent boy but he had associated with bad friends.  He would help him to overcome his alcohol problem.

41.     The applicant’s mother Mrs Asiasiga Rimoni in her written statement (Exhibit A5) said she had been born in Tokelau and was a permanent Australian resident, having come from New Zealand.

42.     Her son had mixed with the wrong crowd and committed bad deeds, and she felt guilty that she was not there for him during that crucial time of his life to supervise him better.  She and her husband had, however, been compelled to work to save money to buy their house.

43.     The applicant no longer has any family in New Zealand and would have no-one to support him and make sure he stayed on the right road.

44.     Before he went to jail the applicant had always worked and looked after his family, he had always had good relationships with the mothers of his children, Esme and Lupe.  Lupe had visited him in prison with their daughter Jadalen when he was at Silverwater.  Esme had never lost touch with him even when she was in Tonga and visits him most days with her young boys.

45.     In the Tokelauan culture the eldest boy takes care of the parents and that tradition is followed in Australia.  He is expected to provide both financial support, as well as emotional and practical support in home maintenance.  Her son takes that responsibility very seriously.

46.     Her 13 year-old daughter Melissa is very attached to her brother and has visited him in jail with her.  She is very upset at the possibility of losing her brother, who looked after her when she was young.

47.     If her son were removed to New Zealand she and her husband would not be able to visit him as they would not be able to afford the fares or accommodation.  They both have to work to meet mortgage payments and their daughter’s expenses.

48.     In her affidavit of 21 July 2008 (Exhibit A6) Ms Esme Mahe stated that she was born in Sydney of Tongan parents and is an Australian citizen.  She has three children, the applicant’s daughter Destiny, 14, and Tyson, aged 2, and Sione, 9 months.  She is a trainee nurse and hopes to become a registered nurse in two years.  At present she works in a nursing home.

49.     Her daughter Destiny was born when she was 13 and the applicant was 14.  During the applicant’s first incarceration she waited for him but was unhappy that he had begun to drink and keep bad company.  Her mother did not want her to associate with him.

50.     When he was sentenced the second time she broke up with him and departed for Tonga to be with her grandmother, taking Destiny with her.  While she was in Tonga they maintained contact and he telephoned occasionally so as to speak with Destiny.

51.     Her two boys were born as a result of an association with another man who is now living in Sydney and who sees the boys on alternate weekends.

52.     When the applicant was about to be released, she returned to Australia with her children, intending to reunite with him.  Since arriving in Australia she has visited him daily, usually with Destiny and her two boys.  Destiny is currently in Tonga with her mother.

53.     The boys have a good relationship with the applicant.  She believes Destiny should be given the opportunity to get to know her father, especially during her teenage years.  She should also be given the chance to form a relationship with her half-sister, Jadalen.

54.     Their intention is to marry as soon as possible.  He would live with his parents until they could obtain a house of their own nearby.  She is happy to live close to them, but not with them.

55.     Ms Mahe intends to complete her nursing course over the next two years, but does not know how she would manage without the applicant’s help.  If he were removed to New Zealand it would not be possible for Destiny to see him whenever she needed him.  Perhaps she could travel to New Zealand to visit him from time to time, but occasional visits are not the same as daily involvement.  “Destiny has already missed out on being with her father.  My two boys will also miss out on the opportunity to have a male role model while they are growing up”.

56.     Her intention is to remain in Australia.  She expects that Destiny will be returning to Australia in the next two weeks [by mid- to late August].  She no longer has any contact with her sons' father.

57.     The applicant’s aunt Ms Mele Kiose Christen in her statement dated 22 July 2008 (Exhibit A8) stated that she had visited the applicant in prison as often as possible and had noted a change in him.  He had matured and was looking forward to being reunited with his family.  He had assured his parents that they could rely on him practically, emotionally and financially.  There is a job waiting for him and he has assured his parents that he intends to start a new life.

58.     They are a close family and her sons are very close to him, as he often looked after them.  The entire extended family is committed to supporting the applicant if he is released.  The church community would also offer counselling and other support to assist him to avoid re-offending.

59.     The applicant's cousin, Mr Mathew Petaia, also wrote a supportive letter (Exhibit A9).

60.     The Reverend Koro Suka, pastor of the Congregational Christian Church of Tokelau at Mount Druitt, swore an affidavit dated 8 May 2008 (Exhibit A7) deposing that he had known the applicant's parents for about 35 years and had known the applicant since about 1995.

61.     For as long as he had known the applicant, he had attended church regularly with his parents and sister, sang in the church choir and played in the church cricket team.  He ceased attending church for a time in 1997, but in general when he was living with his parents he would attend.  He had a close relationship with all the boys and girls in the youth group and was viewed by the others as a leader.

62.     In Tokelauan tradition, the first-born has the whole responsibility for the family’s wellbeing, even if he has his own family and children.  The applicant appeared to be very close to his parents and sister.

63.     He had always been a very respectful and quiet boy.  In or about 2004, Mr Suka had visited him at Cessnock Correctional Centre with his parents.  He seemed rather lost and did not say much.  In Mr Suka’s view, the applicant’s downfall was keeping the wrong company.

64.     If he were to return to the community, he would be well supported until he was able to get back on his feet.

Psychological evidence

65.     Ms Ann Vlotis, consultant psychologist, prepared a report on the applicant dated 22 July 2008 (Exhibit A10).  She based it inter alia on interviews with the applicant, his parents, Melissa, Esme Mahe, Lupe Alofa and Koro Suka.

66.     After outlining his background and relationships, she stated that the applicant was remorseful about his criminal conduct and was able to demonstrate a level of awareness for the suffering he had caused.  “Scott believes he is not a bad person.  Scott reported that at the time of the offence he was desperately trying to gain employment which he said was difficult to obtain.  He said his offending behaviour was motivated by financial concerns”.

67.     Ms Vlotis believed he exhibited symptoms of post-traumatic stress disorder (PTSD) as a result of having been knocked unconscious by several fellow inmates during his first period of incarceration.  It was not clear whether the incident had been reported to the relevant authorities or whether he had received access to psychological services.

68.     He had abused alcohol and marijuana regularly but had participated in a rehabilitation program while in jail.  He attended the Phoenix program three days a week over a six-month period.  He had developed future goals and plans and hoped to obtain a career in the music industry, writing and singing songs.

69.     She believed that the applicant's parents, sister and children would suffer emotionally if his visa were cancelled.  Esme’s sons Tyson and Sione were also forming a strong emotional attachment to him.

70.     Ms Vlotis concluded that the applicant’s life had been marked by trauma, abuse and abandonment.  He had been raised in a dysfunctional environment but now had very strong links to his family, who all reside in Australia.  They are committed to supporting him in becoming re-established in the community.  He has attempted to improve himself by participating in rehabilitation courses in jail and has gained some insight into his offending behaviour.

71.     It was important for the future development of the children that they have regular and ongoing contact with their father.

72.     In oral evidence Ms Vlotis said the applicant’s strongest relationship was with Esme, for although they had separated, she had returned.  Destiny’s situation was difficult because he was not there with her, but he had been her primary carer when she was young.  Lupe wants Jadalen to have a strong connection with him, and although she would send her on visits to see him, she did not have the funds to do so regularly.  Pastor Suka had described him as having a lovely personality.

73.     Ms Vlotis acknowledged that she had not carried out any standard tests to ascertain the risk of recidivism, but said that a number of the factors she had mentioned pointed in the direction of non-recidivism.  He needed counselling for his PTSD, and while that could be obtained in New Zealand, his family and network were here and could support him.

74.     The reports of Mr W John Taylor, clinical forensic psychologist (Exhibit A11) outlined the applicant’s history (noting that the accuracy of the information he provided could not be independently verified) and then turned to the question of substance abuse.  The applicant had begun to drink at the age of 16 but eventually his consumption had increased and he engaged in binge drinking.  He said, “Once I start I can't stop”.  He began to smoke marijuana at 15 and used it on a daily basis until he was 23, but said he has not smoked any since then or used any other unlawful drugs.

75.     Of his most recent offence, the applicant had explained that “I had no job – I was desperate – it was stupid of me”. his motive had been to obtain money for living expenses as he felt he should endeavour to provide for his child and de facto.  He expressed regret for that and all his offences.

76.     Mr Taylor had administered several standard tests that indicated instability in his personality adjustment and some anti-social characteristics.  He was not significantly depressed or anxious and had no significant predisposition to abuse alcohol or drugs.  He had inadequate control over drive and impulse and was likely at times to behave in a rather spontaneous and shortsighted manner, especially if he had engaged in substance abuse.  His anti-social tendencies included an above-average tolerance for legal violations.

77.     The results indicated, Mr Taylor said, that the applicant has a low to moderate risk of recidivism and reasonably good prospects for rehabilitation.  He would like to participate in the ex-inmate program conducted by Mr Taylor if he were to remain in Australia, and was assessed as being a suitable candidate for it.

78.     At the hearing Mr Taylor said that the main factors bearing on the risk of recidivism were:

§having somewhere to live – the applicant intended to live with his parents;

§access to counselling and help – this was available in Australia; and

§having employment available – he had been offered a position at Colorbond.

79.     As he appeared to be motivated, Mr Taylor proposed to admit him to his ex-inmate program, which has a high success rate.

80.     Mr Taylor noted that according to the DSMV-IV-TR, anti-social personality disorders are no longer considered to be chronic or permanent but can be reversed.  The applicant has no such disorder, but does show evidence of instability.  He was easy to relate with and wanted to be responsible.  Support from his family was a factor indicating prospective stability in his life.

81.     His impulsiveness was a risk factor but was amenable to insight that he is in control of his actions.  Counselling would assist in that regard.  He does display some anti-social characteristics, however.

82.     To some extent he had been rehabilitated, and was seeking further improvement for the sake of his children.  That tended to reduce the risk of recidivism.

83.     His score of 18 on the Hare psychopathy checklist was out of a possible 40.  A bad score would be 27 or above, and he was well short of that.

Application of the Law and Findings of Fact

84.     In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).

85. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

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86.     Paragraph 2.3 sets out the primary considerations:

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In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(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.

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Paragraph 2.4 explains:

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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

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87.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (e), armed robbery, and (f), crimes of violence against persons.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

88.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

89.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(e) that armed robbery, and paragraph 2.6(f) crimes of violence against persons, are to be treated as very serious.  In this case, the applicant was convicted in 2001 of robbery in company and in 2005 of robbery in company while armed with a dangerous weapon.

90.     In relation to the former offence, O'Reilly J in his sentencing remarks on 29 March 2001 stated that when the applicant’s co-offender produced a knife and threatened the proprietor, Mr Cameron, with it, the proprietor’s wife ran out of the shop.  She pressed an alarm and started screaming for help.  Then “The prisoner, Scott Rimoni, knocked her to the ground and dragged her back inside the shop.  He threw her against the counter and she fell to the floor whereupon he commenced to kick her”.

91.     In his evidence the proprietor had said that the applicant began to punch his wife about the head and then threw her to the ground.  He began kicking her all over the body and Mr Cameron yelled out for him to stop.  She had her back to the counter and was protecting her head with her arms.

92.     The applicant denied having kicked Mrs Cameron, but O'Reilly J’s findings on the point are quite specific and in any event I am bound to accept them.

93.     While the earlier offence involved little planning, Geraghty J when sentencing the applicant for the later offence on 6 September 2005, considered that there had been considerable planning for the offence, and that the applicant had some degree of involvement in that process.  His Honour described how the applicant and three others, one of whom was armed with a samurai-type sword, robbed a pharmacy, terrifying the customers present.  His Honour continued:

…

This is a very serious crime.  It is to be treated with the utmost gravity.  It is incumbent upon the Court to determine a sentence which will deter others and which will denounce the offender’s conduct, though the sentence is meant not only to reflect the seriousness of the offence, but also to fit the offender himself.

…  This was, in any event, a violent crime.  …  It was an act which was committed with an offensive weapon.  …

94.     Both of the robberies were committed in company, and the later one involved a degree of planning, in which the applicant played some part.  In paragraph 2.6(b), Direction No 21 states that organised criminal activity resulting in a conviction in Australia or elsewhere is considered to be a serious offence.  So is violence against persons (para 2.6(f)), and the violent assault on Mrs Cameron would be viewed by most people as repugnant (para 2.7(b)).  The use of weapons by confederates is a further aggravating circumstance.  The sentences imposed, four years in the first case and three years and six months in the second case, further indicate the gravity of the offences.

95.     The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)).  They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). The only mitigating circumstance advanced by the applicant was his disrupted and dysfunctional upbringing in Tokelau and New Zealand. But on any basis, the applicant’s criminal record must be regarded as very serious.

96.     The next issue for the tribunal to consider is the risk of recidivism.  Direction No 21 states (para 2.10(b)) that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour.  The applicant committed two serious offences within a relatively short interval, the second being perpetrated while he was on parole for the first.  Also while on parole, he committed three driving-related offences (when never having held a license) and was disqualified for two years.  He accumulated a considerable number of prison infractions, most relating to drugs or intimidation, but as Ms Tibbey pointed out, there have been no significant contraventions since December 2002.

97.     Geraghty J in 2005 noted that the applicant was refused parole in February 2003 because of his denial of responsibility for his action and for his less than satisfactory custodial behaviour.  He was later granted parole in May 2003 against the recommendation of the probation and parole service.  Parole was revoked in February 2005.

98.     His Honour noted that the pre-sentence report recorded that any attempt to target the criminogenic risk factors and associated criminal issues of the offender, had been met with a shallow attitude towards redress of his problems, as demonstrated by his failure to attend.

99.     Although he had a sound work ethic, he demonstrated an inability to make discerning choices about the company he keeps and was easily led.  His motivation for the crime, however, was not to support a drug habit, but to assist his family.  He seemed genuine in his expressions of victim sympathy.  That represented an improvement over the attitudes described by O'Reilly J in 2001, who noted that the applicant demonstrated no understanding or empathy for the victims and his thinking and behaviour were immature and anti-social.

100.   At the tribunal hearing his parents said they would allow him to live in their house if he were released and would do their best to assist him in other ways.  They hoped he would become active in the church and in Sunday activities.

101.   Mr John Taylor is a highly experienced clinical forensic psychologist and his report (Exhibit A11) appeared balanced and objective.  He estimated that the applicant’s probability of recidivism was in the low-moderate range, meaning between about 21 and 40 percent probability of re-offending.  That assessment takes into account the fact that on release he would have somewhere to live, access to help and counselling and gainful employment.  Mr Taylor proposed to enrol him in his ex-inmate program as he seemed motivated to continue with his rehabilitation.

102.   As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). I have some reservations about how far the applicant has accepted responsibility for his crimes. He continues to deny the worst aspects of his involvement in the first robbery despite cogent evidence and unequivocal findings. His repeated assertions that he would never re-offend because he was now older (27) than at the time of the offences seemed to imply that he considered armed robbery and battering middle-aged women normal aspects of growing up. On the whole, however, I accept Mr Taylor’s conclusion that the applicant is in the low-moderate range as regards probability of re-offending and that he has a reasonably good chance of living a crime-free and productive life.

103.   In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

104.   Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

105.   As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

106.   Ms Tibbey submitted that the present case was distinguishable from Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 in which Deputy President Block referred to evidence showing a high crime rate among New Zealand citizens living in Sydney. He added that, “Because a community group is involved, it has been thought to be useful that that group should appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by return to New Zealand” (at para 63).

107.   There was no suggestion, it was submitted, that the Tokelauan community had a high crime rate that needed to be curbed.

108.   There are no statistics before the tribunal on crime rates among Australian residents of Tokelauan origin.  As far as I know, however, the Tokelau Islands are still a New Zealand territory and presumably Tokelau residents all hold New Zealand citizenship, as the applicant does.  In that case, any criminological data relating to them would be likely to be subsumed in the total figures for New Zealand residents in Australia.  Given the gravity of the applicant's crimes, general deterrence is a factor that should be given weight.

Expectations of the Australian Community

109.   With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

110.   It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).  Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

111.   In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).

112.   Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).

113.   At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

114.   In my view the community would expect that the visa of a person with such a serious criminal record, is assessed at being at a 21 to 40 percent risk of re-offending and who cannot be described as rehabilitated should be cancelled.

The Best Interests of the Child

115.   The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

116.   The applicant has two children in Australia, Destiny, aged 13 (Esme Mahe’s daughter) and Jadalen, aged 4 (Lupe Alofa’s daughter).  He thought he had two other children, Devlin and Durante, but their mother says they are not his and in the absence of other evidence it may be presumed that she is right.

117.   Esme Mahe’s two sons, Tyson and Sione, aged two years and nine months respectively, also have a relationship with him.  Their father lives in Sydney and sees them on alternate weekends.  The applicant is also close to his sister Melissa, aged 13, who lives with her parents.

118.   I do not accept Ms Vlotis’s claim that removing the applicant would be detrimental to Melissa's emotional wellbeing.  The departure from home of older siblings is a normal experience in the process of growing up and not something from which children or adolescents can or should be insulated or shielded.  Melissa is living with both her parents in a stable and supportive environment.  While no doubt she would be saddened by her brother’s departure, to say that her development would suffer thereby is at odds with common sense and experience.

119.   Tyson and Sione are not the applicant’s children.  They are in their mother’s care and see their father regularly.  Empirical evidence shows that it is the presence of the biological father that is likely to be more important for a child’s development.  The presence of a step-father or de facto is less helpful and can even be disruptive (Re Vo and Minister for Immigration and Citizenship [2007] AATA 1465 at paras 131-143.

120.   At the hearing the applicant claimed to have a close relationship with his daughter Jadalen.  In his interview on 14 May 2007, however, he said that his relationship with Jadalen’s mother Lupe Alofa was no longer amicable and that he had problems contacting his youngest daughter (Jadalen), as Lupe would not allow him to speak to her.  He later said that Jadalen would not speak to him on the telephone and did not know him, as he had been out of her life for too long.

121.   He said at the hearing that he was now on good terms with Ms Alofa, and that she is content for him to be involved with Jadalen, but there is no evidence of any kind from her before the tribunal that might corroborate that assertion.  It may be accepted that he genuinely wishes to play a major part in Jadalen’s life, but Direction No 21 declares (para 2.16(b)) that the hypothetical prospect for developing a better or stronger relationship in the future is normally given relatively less weight than the proven history of the relationship based on past conduct.

122.   It is plain, however, that the applicant is very close to his daughter Destiny, now aged 14.  He was her primary carer when she was young and her mother counts on him to resume that role when they are married so as to enable her to pursue her nursing career.

123.   This is not the common case of an offender seeking to use a child he has casually fathered as a kind of human shield.  He was formerly closely involved in Destiny’s life and I accept that she could suffer significantly if the applicant were removed.  There is no practicable way of alleviating that result in present circumstances if his visa is cancelled.

124.   I therefore conclude that the best interests of Destiny, and to a lesser extent Jadalen, weigh strongly against visa cancellation in this case.

Other considerations

125.   With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states 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”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

126.   The applicant has no business or similar ties to the Australian community.  Most of his family members are here, however, and they would suffer some emotional hardship if he were removed to New Zealand, although that separation could be mitigated by modern communications and the possibility of occasional visits.

127.   Ms Vlotis considered that the psycho-social impact of removal would be “a devastating blow” to the applicant’s family.  But these days it is common for family members to be living in different countries because of work, marriage, education or other reasons.  Not least is that true of islander families, who often have members living in the islands, New Zealand, Australia and sometimes the United States or its Pacific territories.  The consequences for the applicant’s family should therefore not be over-dramatised.

128.   Ms Mahe would face a hard choice if her fiancé's visa were cancelled.  She indicated that she would remain here in that event, and that would cause her emotional hardship.

129.   The applicant has made some progress towards rehabilitation.  He is assessed as being motivated to progress and to have reasonable prospects of living a crime-free life.

130.   On behalf of the minister Mr Chand presented a case that strongly justified visa cancellation, apart from the issue of the best interests of the child.

131.   In my view, however, the best interests of Destiny, and to a lesser extent Jadalen, are the decisive factors.  It is not a case of giving the applicant a second chance – he has already squandered too many chances.  It is more a matter of giving Destiny and Jadalen the chance of a reasonably normal upbringing with both of their parents.  The applicant will be well aware that if he re-offends, a different view is likely to be taken on the issue of possible visa cancellation.

132.   The decision under review is set aside.

I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   …………………[sgd]……………………………….

Renee Wallace, Associate

Date/s of Hearing:  5 and 6 August 2008
Date of Decision:  28 August 2008
Solicitor of the Applicant:                   Ms A Toliopoulos, Legal Aid
Counsel for the Applicant:                 Ms M Tibbey
Solicitor for the Respondent:             Mr A Chand, Clayton Utz