Rutera and Minister for Immigration and Citizenship
[2008] AATA 1174
•18 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4857
GENERAL ADMINISTRATIVE DIVISION ) Re MALCOLM RUTERA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member M D Allen Date18 December 2008
PlaceParramatta
Decision For the reasons given orally at the conclusion of the Hearing of this matter on 18 December 2008, the Decision under review is AFFIRMED.
..................[sgd]............................
M D Allen
Senior Member
CATCHWORDS
IMMIGRATION – Cancellation of visa on character grounds – Applicant does not pass character test – Whether Tribunal should exercise discretion to cancel Applicant’s visa – Direction 21 applied – Decision under review AFFIRMED
LEGISLATION
Migration Act 1958 sections 499, 501
REASONS FOR DECISION
18 December 2008 Senior Member M D Allen 1. At the conclusion of the Hearing in the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MR.ALLEN: By application made on the 16th day of October 2008, the Applicant sought review of a decision by the delegate of the Respondent, cancelling his residence visa pursuant to section 501 of the Migration Act 1958. Section 501 of the Migration Act reads inter alia:
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.
Subsection (6) of section 501 defines the ‘character test’, stating inter alia:
For the purposes of this section, a person does not pass the character test it:
(a) The person has a substantial criminal record as defined in subsection (7), or
(c) having regard to either or both of the following:
(i) The persons past and present criminal conduct
(ii) The persons past and present general conduct
The person is not of good character or;
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would;
(i) engage in criminal conduct in Australia.
Subsection (7) of section 501 defines ‘substantial criminal record’ as;
For the purposes of the character test, the person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more
Subsection (1) of section 499 provides that the Minister, meaning the Minister for Immigration, may give written directions to a person or body having functions or powers under the Migration Act 1958 if the directions are about :
(a) the performance of those functions, or
(b) the exercised of those powers.
Subsection (2A) of section 499 then provides that :
A person or body must comply with a Direction under subsection (1)
The Minister has issued a direction, being Direction 21 visa refusal and cancellation of section 501 of the Migration Act 1958. This direction is binding on all decision makers and consequently this Tribunal is bound to apply the said direction.
I am satisfied that the Applicant has a substantial criminal record. An extract of that record is contained in the Respondents Statement of Facts and Contentions, Exhibit R1 in these proceedings. It is also contained in the so called G Documents which were tendered in these proceedings.
A criminal record of the Applicant commences in 2001 when he was aged 14 years. It extends in the Statement of Facts and Contentions over two pages. The most recent and relevant convictions being as follows:
7 April 2003 – breach of bail and goods in personal custody suspected of being stolen for which a good behaviour bond of 12 months was imposed; 15 November 2003 – that is to say, still within the period of the good behaviour bond, a conviction for maliciously inflict grievous bodily harm with intent to do so, for which imprisonment for two years was imposed; on 24 March 2006 there was a breach of bail and a conviction for destroy or damage property; another breach of bail on 1 April 2006; on 26 November 2006 conviction for the following offences, namely, maliciously inflict grievous bodily harm and resist or hinder police officer in the execution of duty, for which the Applicant was sentences to a term of imprisonment for four years. I understand from his evidence today that he is eligible for parole on 24 September 2009.
In passing sentence on 26 November 2006, Conlon DCJ said of the offence:
‘ I regard this matter as objectively serious involving, as it did, a vicious and unprovoked attack on an unsuspecting citizen. The offender was convicted at the Wollongong District Court on 1 February 2005 in respect of a charge of maliciously inflicting grievous bodily harm. He was sentenced to two years imprisonment with a non parole period of 12 months to date from 15 November 2003. He was also on a bond at the time of this offence. On 20 September 2006, at Wollongong Local Court, in respect of a charge of aggravated break and enter and commit serious indictable offence, he was placed on a section 9 bond to be of good behaviour for a period of two years with supervision. His record is not one that would entitle him to any leniency. The frequency of the Applicants convictions and the serious nature of the offences lead irresistibly to the conclusion that the Applicant is not of good character.’
It was submitted that regarding the last two serious offences there were some extenuating circumstances, for example, regarding the offence of grievous bodily harm. The Applicants witness, Mr. Downie, referred to elements of self defence. Suffice it to say that the Applicant entered a plea of guilty to the said charges and, therefore, I take it that the elements of the offence were made out.
As to the second offence, Mr. Downie also suggested there may have been some racial abuse. That does not conform to the facts accepted by His Honour Judge Conlon in sentencing and I find it credible that although the Applicant may not have been able to obtain witnesses, as suggested by Mr. Downie, a competent defence counsel did not make some reference to that in his plea of mitigation.
To quote from the statement of facts accepted by Conlon J:
‘ this victim finalised his phone call, looked downwards and placed his mobile phone into his pocket. As the victim was lifting his head he felt a sudden blow to his nose region.’
The Respondent, and hence this Tribunal, has a discretion not to cancel a visa. In exercising this discretion the Tribunal must abide by Direction 21 signed by the Respondent, that being the direction created pursuant to section 499 of the Migration Act 1958. Direction 21 states that the Tribunal must have regard to three primary considerations and a number of other considerations. The Tribunal must also have regard to the importance or weight placed by the Minister on the primary considerations. See paragraph 2.2 of Direction 21. The three primary considerations are:
(a) The protection of the Australian community
(b) The expectation of the Australian community
(c) The bests interests of the child
At the outset I can say that there are no child / children of the Applicant whose interests need to be considered. He does have a sibling in Australia, but there is no evidence before me of any real impact his deportation would have upon him. For a large part of his latter years the Applicant has been removed from day to day contact with his sibling by reason of his incarceration in prison. No evidence was presented of any extended family considerations which should be taken into account.
So far as the protection of the Australian community is concerned, it can be stated that the Applicant is a recidivist. As stated above, his criminal record commenced at the age of 14 years and he has continued ever since. He says that if allowed to remain in Australia he would avoid contact with former companions, but I note in the past he has failed to do so.
His most recent offences have involved violence, including violence directed towards the police. In sentencing, Conlon DCJ referred to the Applicant taking responsibility for his own rehabilitation. I am not convinced that such rehabilitation is, or will be, effected. Although reference is made to a program at Kadesh House, I note that Applicant, in a letter undated but received by the Respondent on 24 August 2005 when a previous visa cancellation was considered, also refers to having undergone a program at Kadesh House. Although in that letter the Applicant states he is ‘sincerely remorseful for my past conduct’, the rehabilitation did not instil enough remorse to prevent him re-offending in 2006, namely aggravated break and enter and in 2007, maliciously inflict grievous bodily harm.
The offences committed by the Applicant are serious and I am of the opinion that, given his past history, the Applicant will re-offend. Likewise, his family situation does not inspire confidence. For example, the pre sentence report before Conlon DCJ, referred to Mr. Rutera residing with his mother and his stepfather and that their alcohol abuse impacted upon his ability to refrain from drinking alcohol. In one sense, this may be said to mitigate the Applicants offences in that he lacked proper guidance as a young man and now the courses in jail undertaken by him have had effect. I am not persuaded by the effectiveness of any prison courses and, in the past, he has not reformed. All in all, I find that the Australian community should be protected from the Applicant.
In taking into account general deterrent, as per paragraph 2.5 of the Direction, I am satisfied that his deportation would send a strong message to his immediate family in Australia who, the Applicant states, numbers 150 including 50 cousins. His deportation would also become knowledge amongst the wider Cook Island community residing in Australia, particularly around Sydney and Wollongong. Paragraph 2.17 of the Direction 21 allows for other mattes to be taken into account. I propose to deal with these matters seriatim. As to the extent of disruption to the Applicants family, business or other ties in the Australian community, there will be some disruption to his mother and his brother, but there is no evidence as to any real disruption to extended family groups within Australia. The degree of hardship that will be caused to immediate family members lawfully resident in Australia can refer mainly to the assistance which the Applicant gives to his mother in the care of a great uncle who is, apparently, in ill health. Suffice it to say that the Applicant has been removed from the immediate care of that uncle for some time. Likewise, at document Q page 103 of the so called G Documents, is a medical certificate relating to the said great uncle. It refers, or rather, its states as follows:
‘He also has a psychological condition and has early dementia. He is unable to look after himself and has a carer looking after him. His condition is gradually getting worse and he may need to go into a nursing home.’
As said to me today that he has, in fact, Alzheimer’s Disease. It would seem to me that whatever the care that may be given to him, that great uncle will find it a necessity to enter a nursing home sooner or later, and apart from the Applicants mother, there is also his brother.
I have mentioned the family composition of the Applicants family. So far as being overseas is concerned, I understand that his biological father, who resided in the Cook Islands, is deceased and there is no evidence before me as to any larger kinship group still in the Cook Islands.
Evidence of rehabilitation is nil, and I have referred to his criminal antecedents previously. I also take into account that on a previous occasion the Applicant was warned that his conduct may lead to deportation. At that time, he was not deported. However, it was pointed out to him that any further offending may lead to a reconsideration. The point is, after a warning, he has still re-offended. As to employment, I find the evidence somewhat conflicting. There is mention in the documents as to employment by Edge Landscaping, but I understand that the Applicant did not continue with that employment. There is mention of a Phillips Removals, but I do not know more about that. There is, finally, a document which became Exhibit A3, from A1 Auto Dismantlers which contains the offer of a position as an auto parts dismantler with that organisation. The letter is dated 8 December 2008 and, as I said earlier, the Applicant is not released from jail until September 2009 at the earliest.
There are other courses which have been undertaken by the Applicant, and I accept that he could work if he could find such work as a builder’s labourer, a bricklayer or brick labourer and a forklift driver; skills which would be useful, not only in Australia, but also in the Cook Islands.
To sum up, the Applicant is both a serial and vicious offender who, despite leniency having been extended to him in the past, has continued to offend even whilst subject to non custodial orders. His continued presence in Australia is inimical to the common good of the Australian community and this factor outweighs all other considerations. Consequently, the decision under review is affirmed.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed:
[M. Corcoran]............................................................................
AssociateDate of Hearing 18 December 2008
Date of Decision 18 December 2008
Solicitor for the Applicant Appeared in person
Solicitor for the Respondent DLA Phillips Fox
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