Sauvao and Minister for Immigration and Border Protection
[2014] AATA 170
•28 March 2014
[2014] AATA 170
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3803
Re
Editor Sauvao
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon B J M Tamberlin QC, Deputy President
Date 28 March 2014 Place Sydney The decision under review is set aside and substituted with the decision that the Applicant’s visa should not be cancelled.
......................[SGD]..................................................
The Hon B J M Tamberlin QC, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 –seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children - decision under review set aside and substituted
LEGISLATION
Migration Act 1958; ss 499, 501
CASES
Sauvao and Minister for Immigration and Citizenship [2012] AATA 817
Sauvao and Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
The Hon B J M Tamberlin QC, Deputy President
BACKGROUND
The Applicant, Mr Editor Sauvao, was born in Western Samoa and is approximately 28 years old. The Applicant’s mother and father separated shortly after he was born and his early life in Samoa was marked with financial hardship for him and his family. He first arrived in Australia in December 1991 at age 6 and he was adopted by a biological uncle who lived in Queensland. In February 1996 the Applicant had to leave Australia to go to New Zealand to live with his mother, where his family was again faced with dire financial circumstances. He stayed in New Zealand for approximately 6 years, after which he went to live in Samoa with his mother. He was 17 years of age when he travelled to Samoa.
The Applicant returned to Australia on 28 April 2003. On 5 March 2005 he was granted a Class TY Subclass 444 Special Category (Temporary) Visa. On 16 July 2012 the Minister for Immigration and Citizenship (as he was then known) cancelled the Applicant’s visa pursuant to section 501(2) of the Migration Act 1958 (the Migration Act). The Applicant was notified of the cancellation on 29 August 2012. He was apprehended and taken to Villawood Detention Centre around this time, and has remained in detention to date. He applied to this Tribunal for review on 31 August 2012 and on 20 November 2012 the Tribunal affirmed the Minister’s decision (see Sauvao and Minister for Immigration and Citizenship [2012] AATA 817).
That decision was set aside by the Federal Court on 16 August 2013 and remitted to this Tribunal for consideration in accordance with the decision of the Court (see Sauvao and Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827).
As noted by the earlier Tribunal, on 11 June 2010 Mr Sauvao was convicted of assault occasioning bodily harm and was sentenced to a term of 12 months imprisonment, albeit suspended for 3 years, and probation for 2 years. Although it is this conviction that led to the cancellation of Mr Sauvao’s visa, he has a history of criminal offending resulting in convictions for 23 separate offences between 2004 and 2012, including assault, public nuisance, driving offences, breach of judicial orders and property offences. These offences are summarised in the Table below:
Date of offence/ charge Court date Court Result Incidents prior to 2009
VAG commit public nuisance
6 June 2004
13 July 2004 No conviction recorded
Fine: $500
Drive with low range prescribed alcohol concentration
Unaccompanied learner
14 June 2006 Fine: $350
License disqualified until 14 November 2006
Fine:$200
Uninsured vehicle
Unregistered vehicle
9 October 2006 On each charge, fine $400 Drive with high range prescribed concentration of alcohol
Drive whilst disqualified
Fail to appear in accordance with bail granted undertaking (2 charges)
9 November 2006 Community service order for 50 hours cumulative
License disqualified for 2 years
Community service order for 50 hours cumulative
License disqualified for 2 years commencing 13 November 2008
On each charge: convicted.
Bond to be of good behaviour for 12 months
Assault officer in execution of duty
Common assault
Resist officer in execution of duty
25 July 2007 On each charge, fine: $1,000
Fine: $500
Wilful damage
27 December 2008
Assaults occasioning bodily harm whilst armed/ in company
27 December 2008
19 January 2009 On both charges: No conviction, recorded
One penalty imposed for both offences
Fine: $1,000
Compensation: $750
Incidents in 2009
Commit public nuisance
24 January 2009
23 February 2009 Conviction recorded
Fine: $150
Common assault
8 March 2009
4 February 2011 Conviction recorded
Probation for 12 months (to be served concurrently with probation currently being served)
Breach of bail condition
14 March 2009
23 September 2009 Conviction recorded
No further punishment
Assaults occasioning bodily harm whilst in company
22 May 2009-
Burglary and commit indictable offence
22 May 2009
11 June 2010 On all charges:
Conviction recorded
Sentenced
Imprisonment: 12 months
To be suspended for 3 years
Probation period: 2 years
Incidents after 2009
Urinating in a public place
20 October 2010
18 November 2010 No conviction recorded
Fine: $150
Assault or obstruct police officer
29 January 2011
20 April 2011 Conviction recorded
Fine: $400
Breach of suspended sentence imposed on 11 June 2010
Breach of probation order imposed on 11 June 2010
31 October 2011 Conviction recorded
Suspended sentence extended until 11 December 2013
Conviction recorded
No further punishment
Breach of probation order imposed on 11 June 2010 24 February 2012 Conviction recorded
Fine: $400
The Respondent also raised some other incidences during the hearing of this matter in respect of which Mr Sauvao had not been charged nor convicted, as well as incidents which occurred whilst Mr Sauvao has been in detention and I have taken these into account.
REMITTAL
As noted above, this Tribunal, differently constituted, affirmed the Minister’s decision to cancel the Applicant’s visa on 20 November 2012. On 16 August 2013 the Federal Court issued a writ of certiorari quashing the Tribunal’s decision and requiring reconsideration of Mr Sauvao’s application in accordance with law. The primary ground for the remittal order was that the Court considered that the Tribunal failed to take into account a relevant consideration, namely the Applicant’s employment links in Australia.
ISSUES ON REMITTAL
The issue for determination by this Tribunal on the remittal is whether on the evidence before the present Tribunal, the decision of the Minister to cancel Mr Sauvao’s visa is the correct or preferable decision.
The determination of this question requires consideration of the provisions of s 501 of the Migration Act, having regard to Direction No. 55 made pursuant to s 499. Section 499 empowers the Minister to give directions as to the matters to be considered in the exercise of power under s 501. Direction No. 55 embodies the relevant direction in the present case.
Under s 501(2) the Minister has power to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and does not satisfy the Minister that the person satisfies the character test. There is no dispute in the present case that Mr Sauvao does not pass the character test because he has a substantial criminal record in that he has been sentenced to a term of imprisonment of 12 months or more: see s 501(7) of the Migration Act.
Accordingly, the question is whether this Tribunal, having regard to the matters set out in Direction No. 55, should exercise the discretion to cancel the visa.
DIRECTION NO. 55
Direction No. 55 provides guidelines for those matters which must be taken into account when considering whether to cancel a person’s visa. Under this Direction it is clear that the objective of the Act is to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, especially in relation to safety of the community’s more vulnerable members such as minors. The Direction is binding on all decision-makers including this Tribunal.
Part A of the Direction is concerned with the exercise of the discretion to cancel a visa holders’ visa and outlines both the primary considerations and the other considerations which must be taken into account when exercising this discretion. The primary considerations should generally be given greater weight.
The four primary considerations are set out in para 9(1) of that Part as follows:
9. Primary considerations – visa holders
(1)In deciding whether to cancel a person’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The strength, duration and nature of the person’s ties to Australia;
c) The best interests of minor children in Australia;
d) Whether Australia has international non-refoulement obligations to the person.
The other considerations are set out in para 10(1) as follows:
10. Other considerations – visa holders
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b) Impact on Australian business interests;
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
APPLICANT’S EVIDENCE
Mr Sauvao provided two written statements and gave oral evidence in these proceedings.
In his first statement he explains that his mother and father separated one week after he was born, that he was raised by his mother in Samoa and that life was tough for he and his siblings as his mother was unemployed and could barely make ends meet. When he was approximately 6 years old, his mother decided that he and his siblings would have a better future if they moved to Australia to live with other family members. Mr Sauvao, his sisters and several of his cousins were eventually adopted by an uncle who lived in Queensland.
Following his arrival in Australia, Mr Sauvao’s life was uprooted when he had to go to New Zealand to live with his mother at age 10 and then again when he left New Zealand to live with his mother in Samoa at age 17.
Mr Sauvao states that he returned to Australia in April 2003 and describes the nomadic life he led as he moved numerous times across the country to live with various friends and family members. He states that at times during this period he felt as though he had “no real connection with [his] family” and that he “had no stability in [his] life”.
In his written statement Mr Sauvao provides an account of the offences he was charged with during this period, up until he was detained in 2012. Mr Sauvao was extensively cross-examined in relation to these offences by the Minister’s representative, during which he provided his version of events, as well as the circumstances and reasoning that led him to enter various pleas, which to some limited extent explained his perception as to what had occurred.
In both his written and oral testimony Mr Sauvao provides evidence in relation to his history of alcohol use. In his first written statement he states that alcohol consumption has caused problems for him. Many of his offences were alcohol related. He had been intoxicated whilst committing the offences for which he has been charged. He agrees that he had a drinking problem. He stated that in a normal week he would drink a six-pack of beer or pre-mixed drinks on a Saturday after work, but that he would binge drink on nights out with friends for birthdays and other occasions. He also provided evidence in relation to an incident in 2011 where he was taken to hospital after drinking approximately “one and a half bottles of Jack Daniels, six Vodka drinks and eight tequila shots”. Mr Sauvao did not remember this incident, but he remembers waking up in hospital. In cross-examination Mr Sauvao was asked whether this was was a fair representation of his regular drinking habits before he went into detention. Mr Sauvao stated that he would not drink like this often, maybe once a month, but not to this extent.
In both his written and oral testimony Mr Sauvao stated that he has not had anything to drink since he was placed in detention in August 2012 and that he believes he will not drink again, especially now that he is aware of the consequences that alcohol consumption is likely to have on him and his family. In cross-examination he agreed with the proposition put forward by the Minister’s representative that his lack of access to alcohol in detention was a form of “forced abstinence”, that he’d “had no choice in the matter” and that there was no alcohol available to him even if he wanted to take a drink.
Mr Sauvao also agreed that prior to going in to detention he had issues concerning anger management. When asked whether he currently has any problems with anger management, he stated that “it depends on the situation” and that “of course I get angry, yeah, but it's more of stress and the environment or just not coping with it well”. In the way of an example of situations where he gets angry, Mr Sauvao stated that he is generally a “happy guy”, but he feels angry sometimes when he’s put in a situation where he feels intimidated, where he is “being bullied, being picked on, being an outcast from things…just not being accepted”.
Mr Sauvao outlined his efforts towards dealing with his alcohol and anger management issues. After the assault in 22 May 2009, for which he was convicted and sentenced to a suspended 12 month custodial sentence, he spent six months in remand. He states that “those six months inside changed me” and that he began to learn to respect other people and treat them how he would like to be treated. He described the steps that he took to rehabilitate himself, including attending counselling sessions which had been arranged as part of his probation and parole, as well sessions that he had arranged independently.
Shortly after being detained, Mr Sauvao states that he made attempts to attend anger management courses and alcohol counselling sessions, which he was later informed had either been cancelled or had never been offered at the facility in which he was detained. He states that in June 2013 he was able to do four sessions with a counsellor when he was transferred from Villawood to Melbourne. Since being transferred back to Villawood in August 2013, he has attended counselling sessions with a psychologist who practices at the detention centre. At hearing he stated that although he has had difficulty opening up in the past, he has a good relationship with this psychologist and has been able to speak with her about the issues he has been going through in detention and his upbringing. They have discussed coping strategies which he can use to control his emotions.
In his evidence Mr Sauvao describes his relationship with his fiancée, Samantha Daniels, as loving and mutually supportive. They met in March 2010 and initially lived together at Ms Daniels’ parents’ house until they moved into their own place in November 2011. They have been engaged since March 2012.
In his first statement, Mr Sauvao describes how Ms Daniels had an accident and injured her back shortly after they met and as a result finds it difficult to do most basic activities. He states that prior to being detained, he helped her perform these tasks and tried to support and motivate her through difficult times. He states that she is “financially dependent on me”, that there has been pressure on their finances since he has been detained but that he believes he can support her with his income if he is released from detention. He has expressed that it is his intention to marry Ms Daniels and work full time to support her and his young son.
In regards to his relationship with Ms Daniels and her family, Mr Sauvao states:
From the first day I met Sam, I was honest with her about my past and committed to changing my ways. At the beginning, I found it difficult to communicate with Sam and her family about my personal issues, the sense of displacement that I felt. However, as time went by, I became much more comfortable and opened up. I started treating them as my family and they provided me with much support, and a safe environment to discuss my issues.
In his written statements and at hearing, Mr Sauvao repeatedly stated that he has found a great source of support in his fiancé’s mother, Mitch Krueger. He states he has an especially close relationship with Ms Krueger, as he felt she understood him and he regularly took the opportunity to talk to her about his issues and strategies to help him. He has been speaking with Ms Krueger as a mentor and counsellor for over two years and both he and Ms Daniels ask her for advice and have found her support invaluable. She has helped him deal with some of his issues prior to his detention and has arranged for him to attend local alcohol and stress management sessions if he is released from detention. He is confident that she will continue to be a source of support if he is released from detention.
Mr Sauvao also provided evidence about his relationship with his son, who was born while he was in detention and is now approximately 11 months old. He states that he has spent a lot of time with his son whilst in detention and described the strong sense of love and affection he feels for him, as well as the bond that they share. Of his role as a father, Mr Sauvao states:
The moment I heard him crying over the phone when he was born, I felt an overwhelming feeling come over me that I have never felt in my entire life, and I realized that this is what life is all about. I was made to be a father.
He explained that more than anything, he wants to be a responsible father and give his son the strong family foundation that he himself was unable to experience.
APPLICANT’S WITNESSES
Samantha Daniels
Ms Samantha Daniels is the Applicant’s fiancé and has provided both written and oral evidence in these proceedings. During her oral testimony she impressed as an intelligent witness who was dedicated to supporting Mr Sauvao through this review, despite the significant hurdles that she has had to overcome throughout this process. She describes their relationship as loving, based on responsibility and mutual trust.
She explained that she had met Mr Sauvao through a friend in March 2010 and they started dating shortly after. She was aware that he had spent some time in prison. She states they have built a close relationship over the past four years and that she hopes to marry him in the near future.
She suffered a serious injury to her back some weeks after she started dating Mr Sauvao and states that he supported her throughout her recovery and assisted with the daily tasks which she was unable to perform. Since her injury, she has been dependent on Mr Sauvao for financial, emotional and physical support.
Ms Daniels states that she has taken their young son to visit Mr Sauvao in detention approximately eleven times since he was born. She states that they have formed a strong bond and describes Mr Sauvao as a very affectionate, hands on, caring father. If Mr Sauvao’s visa was cancelled and he returned to New Zealand, she states it “would undoubtedly affect our son and me in a negative way and I do not want that for our son”.
Ms Daniels explained to the Tribunal that she lived with Mr Sauvao in her parents’ house after they started dating and in approximately November 2011 they moved out together into their own house. In her statement she describes an incident in April 2012 when they had had an argument during which she had asked him to leave. The police were called by a neighbour and eventually they took out a protection order, of their own accord, on her behalf. Ms Daniels gave evidence that she did not request that this order be taken out. She was extensively cross-examined about this incident and maintained that she did not agree with the version of events recorded by the officers who attended the scene, that they had not had arguments like this previously and that Mr Sauvao had never been physically violent towards her. In both her oral and written evidence she states that she was not scared or fearful of Mr Sauvao during this argument, that she didn’t really want him to leave and was afraid of what would happen to their relationship.
Ms Daniels also explained that she is aware that Mr Sauvao has a drinking problem, but that she has not personally witnessed this problem. In the past year she has spoken to Mr Sauvao about his drinking and he has promised her that he will not drink anymore and that he will seek out programs to help him. If Mr Sauvao’s visa is not cancelled and he is released from detention, she will ensure there is no alcohol in the house, encourage him to attend counselling and remind him of his duties as a father to help ensure he maintains his sobriety.
Mitch Krueger
Ms Mitch Krueger is the mother of Ms Daniels, the Applicant’s fiancée. She has known Mr Sauvao since he and Ms Daniels started dating in March 2010 and he lived in her house with Ms Daniels for approximately 15 months. She is a youth worker with several years’ experience and is currently working for a foster care agency. She holds a Certificate III in Youth Studies, which includes training for anger management She also has experience working with children aged four to eighteen years of age with complex behavioural issues, and has had extensive training bringing out trust in individuals who have suffered trauma. In her evidence she explains that Mr Sauvao displayed a strong interest in her work and approached her to discuss some of his own issues. She started talking with him about his problems in approximately August 2010 and they worked together to find strategies to help him deal with his past and his anger management issues. He is able to open up to her, she has provided him with emotional support and they have established a good rapport.
Ms Krueger explained that Mr Sauvao provided financial, emotional and physical support to her daughter after she suffered her injury, up until he was taken into detention. Since Mr Sauvao has been in detention, her daughter has faced financial hardship and now relies on her for assistance with the care of her young son, as well as other daily tasks. Ms Krueger works full time, and when she is at work there is no one else around to help Ms Daniels. Ms Krueger stated that she often leaves work to return home on her lunch break to provide assistance.
If Mr Sauvao’s visa is not cancelled, Mr Krueger states that he will return to live in her home with Ms Daniels. She described her home as a place where they have a lot of honesty. She is aware of Mr Sauvao’s problem with alcohol consumption, as well as his previous offending conduct. In both her written and oral evidence she stated that she has never seen Mr Sauvao display aggression or anger in her home or towards any of her family. Instead she states he has been nothing but respectful to all her family, that he treats her daughter with kindness and respect and that she has never felt that Ms Daniels has been fearful of Mr Sauvao or that he has been violent towards her.
Ms Krueger also spoke of her commitment to supporting Mr Sauvao’s rehabilitation. She has said that she will help him address any anger issues that arise and will help support him through counselling. She explained to the Tribunal that she has made contact with a number of local counselling services in her area on Mr Sauvao’s behalf. She has researched the services that they offer and has foreshadowed that Mr Sauvao will be enrolled with them if he is released.
Speaky Sauvao
Ms Speaky Sauvao is Mr Sauvao’s biological sister. She provided both written and oral evidence in these proceedings describing her strong connection with and affection for Mr Sauvao,
When they were younger and lived in New Zealand, Mr Sauvao was under her care. She was his guardian while there mother was in Samoa caring for their elderly grandmother. Ms Sauvao felt as though she was his mother and she cared for him greatly.
At hearing she confirmed she is aware of his drinking problems and past violent conduct. In the past Mr Sauvao has spoken to her about his drinking and other troubles and she reached out to him as best as she could when their mother became ill. They have provided emotional support and encouragement to each other during hard times.
Ms Sauvao states that she feels a great sense of responsibility to Mr Sauvao, especially now that their mother has passed away. She expressed a strong desire for him to stay in Australia so that they may continue to be a part of each other’s lives, so she may provide him with ongoing support and so he can continue to be a part of her children’s lives.
Caroline Hare, Forensic Psychologist
Ms Caroline Hare is a forensic psychologist registered with the Australian Health Practitioner Regulatory Agency, with over 11 years of training and experience in the assessment and treatment of offenders.
Ms Hare was engaged by the Applicant to provide a psychological assessment in relation to Mr Sauvao, specifically in relation to his risk of engaging in alcohol consumption and violent reoffending in the future. She provided a written report dated 16 December 2013 and gave oral evidence at hearing.
Ms Hare conducted an assessment of Mr Sauvao on 6 December 2013 at Villawood Detention Centre. In her written report she states that she applied the Alcohol Use Disorders Identification Test (AUDIT) in order to screen Mr Sauvao for a range of drinking problems, in particular hazardous and harmful consumption. Mr Sauvao was asked to base his response on his behaviour when last in the community. Based on these responses, Ms Hare reports that he scored a total of 14 out of a possible 40 on the AUDIT scale. She states that this score suggests he engaged in hazardous drinking when last in the community.
In her report she states that Mr Sauvao “appears to recognise that alcohol usage has caused him problems in the past, and is willing to engage with services to make lasting changes in this area”, but that his attitude towards future avoidance of alcohol appeared as “somewhat ambivalent”. His engagement with support services will be important to maintaining his sobriety in the future.
In cross examination Ms Hare stated that she was aware that Mr Sauvao’s abstinence from alcohol will be tested if he is released into the community as he has not had access to alcohol since he has been in detention. She also stated that he would have good prospects of living an alcohol free future with the appropriate support in place.
In regards to Mr Sauvao’s risk of reoffending, Ms Hare reported that although she assessed the Applicant as presenting a number of factors consistent with the risk of offending in the past, he has also made change in several areas of his life more recently. She states he possesses protective factors which have been found to be associated with a reduced risk of reoffending, and which will go some way towards ameliorating his risk of reoffending, including resilient mental health, increasing age, promise of stable employment, stable relationship, sobriety and recent transition into fatherhood. She opined that Mr Sauvao currently presents:
a moderate risk of engaging in offending behaviour in the future. It is my opinion that this risk is manageable… and…will reduce to a low risk of reoffending if Mr Sauvao engages with intervention and support services to maintain his sobriety and continues to develop his emotional management skills, as well as maintain stable accommodation and relationship status.
In her oral evidence Ms Hare confirmed that her conclusion regarding Mr Sauvao’s risk of reoffending was two-fold. She assesses the current risk as “moderate” in circumstances where Mr Sauvao does not engage with any interventions and/or any of the protective factors falls through. If Mr Sauvao engages with intervention and support services and all the protective factors remain in place, she assesses his risk of reoffending as “low”.
When asked about whether in her opinion there was an indication that Mr Sauvao would engage in support services, Ms Hare stated that she was not aware that he had had any treatment in the community for alcohol abuse in the past. She stated there are a lot of positive factors currently in place which she believes will encourage him to engage with community services.
REASONING
I now turn to a consideration of the primary and general considerations set out in Direction No. 55.
Nature and Seriousness of the Conduct
The table of offences, penalties and fines in paragraph [4] above shows a pattern of conduct commencing when the Applicant was 19 years of age which increased in seriousness up to 2009, when the major offences concerning assaults resulted in convictions, after pleas of guilty, to a sentence of imprisonment of 12 months. A number of the offences beginning in 2007 involved violence and included assaults, committing public nuisance and wilful damage. The punishments imposed ranged from fines to suspended sentences and a term of imprisonment whilst on remand. There is no doubt that some of his past conduct has been serious.
In addition to the criminal record of offences, there is in evidence an up-to-date summary of a number of incidents which occurred whilst the Applicant has been in detention and which have been the subject of reports. These incidents have not been examined in any judicial process. The detention reports contain allegations and assertions of incidents involving some damage to property, non-compliance, threatened assaults, aggression, minor disturbances and verbal abuse. However, these results contain untested allegations which in many cases are of a generalised nature and they express conclusions rather than being evidence of actual facts as to what had occurred.
The Minister’s representative attaches considerable weight to these detention incidents to show a continuing tendency towards aggression and violence, and a general disrespect for authority. Counsel for the Applicant on the other hand says that they should either not be taken into account or at least that they not be given any significant weight because of their untested nature and the failure to call any witnesses giving direct evidence as to what had taken place. He emphasised that, many of the reports contain generalised conclusions, such as assertions the Applicant became rude, “abusive” or “aggressive”.
When considering the exercise of the discretion in this case, the Tribunal must have regard to the entirety of the Applicant’s conduct that is before it. It is not appropriate to exclude certain categories of information on the ground that the Tribunal is limited to considering only criminal convictions, sentences, penalties and proven statements made in relation to the criminal history of an Applicant: cf Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 per Branson J at [39] – [49].
In exercising the discretion it is appropriate to take into account all relevant conduct on all matters which could assist an assessment of the character of the Applicant and the seriousness of the conduct, and in particular whether there is likely to be any risk to the Australian community if the Applicant were to remain here.
In considering the entirety of the evidence before me, I have had particular regard to the sentencing remarks of Judge Robin QC on 11 June 2010 when imposing sentence on the Applicant in respect of the May 2009assault. This involved breaking a bottle of alcohol and cutting the victim badly, which resulted in multiple stitches, both superficial and subcutaneous. The charge was in respect of assault occasioning actual bodily harm while in company. The Judge noted that the Applicant pleaded guilty to the circumstances of the offence. He also noted that the incident was akin to “glassing”. He also took into account that it was not suggested that the Applicant entered the premises where the assault took place with any intention of doing anything particularly untoward, but rather the position was that things got out of hand. There was also a plea of guilty by the Applicant that he had entered a dwelling and assaulted a person there leading to the victim having a black eye.
His Honour noted the Applicant was 24 years of age at the time of the incident. He also noted that the Applicant had a criminal history in both Queensland and New South Wales involving assaults in 2008 and going back to 2007.
He described the Applicant’s conduct as “something the community regards as reprehensible” but he decided that the Applicant should not be returned to custody as it would be “undesirable for someone of his young age”.
Judge Robin accepted the prosecutor’s submission that a sentence of 18 months, which the prosecutor put at the bottom of the proposed range, was appropriate in view of the seriousness of the crime. However, he took into account the period of custody prior to the sentencing.
The range of offences committed by the Applicant according to his criminal record involved some violent incidents and these must be regarded very seriously. However, they could not be said to have been committed against “vulnerable” members of the community. The sentences imposed by the courts are not of a severe nature and they do not reflect any high level of fear by the courts that there is a need for the protection of the Australian community generally arising from the Applicant’s conduct. Nor is there evidence that any crimes were committed whilst the Applicant was in immigration detention.
In relation to this primary consideration I give it considerable weight but do not consider that the relevant conduct is extreme serious misconduct.
Whilst it is true that there has been some trend to increasing seriousness in the offences, the degree of escalation is not extreme.
It cannot be said that the Applicant has given any false or misleading information on the material before me. He has frankly conceded that his conduct was serious and harmful and has shown genuine regret.
I have taken into account that the Applicant has reoffended, having been formally warned of the consequences of further offending in terms of his immigration status.
Having regard to the entire history and records relating to the conduct of the Applicant, I consider that his conduct, while serious, was not at the higher extreme of criminal conduct. Most of the assault and aggression incidents involving violence involved excessive consumption of alcohol and they were not premeditated actions.
Risk to the Australian Community
The Direction states that the community’s tolerance for risk of future harm becomes lower where the seriousness of the proven harm is greater. In other words, the greater the past harm the lower the tolerance. In the present case the level of harm is not of a high order taking the entirety of the conduct into account. The conduct of the Applicant in this case could not be described as harm which is so serious that any risk that may be repeated would be completely intolerable.
I consider it is unlikely that the Applicant will engage in further criminal or other serious misconduct. I have taken into account the strong evidence from members of the Applicant’s family as to their desire and practical preparedness to actively assist in the rehabilitation of the Applicant. The evidence I rely on in particular is that of Ms Krueger, the Applicant’s fiancée, Ms Daniels, and his biological sister, Ms Speaky Sauvao, much of which has been summarised above. All these witnesses manifested a genuine ongoing affection for the Applicant, as well as preparedness to make sacrifices to assist in his rehabilitation. For example, Ms Krueger has made enquiries as to appropriate programs for the Applicant to follow which specifically relate to alcohol abuse and anger management. She is prepared to ensure he undertakes these programs and she has agreed to provide both he and Ms Daniels with accommodation if he is released from detention.
Ms Daniels has an infant child with the Applicant and she has expressed a strong desire to resume living with Mr Sauvao in a close relationship to bring up their child and to provide support for him as her life partner.
I accept that the Applicant has strong remorse and shame for his conduct and that he has the motivation and intention to take the necessary steps to attend programs and take up work. He is now more mature being 29 years of age. He appreciates the responsibilities of a parent and has a strong desire to be with his child and Ms Daniels. He was frank and open in his evidence and in my view he fully appreciates what he and they will suffer if he repeats his earlier conduct. The Applicant’s sister, Ms Sauvao, indicated strong affection and desire to assist the Applicant. I also heard evidence from the Applicant’s father who manifested similar positive emotional support for Mr Sauvao.
The Applicant called evidence from a psychologist, Ms Caroline Hare, who examined the Applicant over a three hour period and considered in detail his relevant history. Her evidence is summarised earlier in these reasons. She identified the Applicant as having a severe alcohol consumption problem. She administered a depression and anxiety stress test and noted that the Applicant reported symptoms consistent with normal levels of depression and stress, and minor levels of anxiety when compared with the normative population.
She considered that the Applicant had some traits consistent with anti-social personal characteristics and saw him as presenting a number of factors consistent with some risk of re-offending. She concludes that the Applicant presents a “moderate” risk of engaging in offending behaviour in the future but that this is manageable and will reduce to “low” risk if he engages with intervention and support services to maintain sobriety and develop emotional management skills, as well as maintaining stable accommodation and relationship status.
Ms Hare was cross-examined in some detail but her evidence was not shaken in any material respect. No psychological or other expert evidence was called on behalf of the Respondent. I accept the evidence of Ms Hare without reservation.
There is a letter in evidence from a construction company, Elsco Pty Ltd, indicating that it would have no hesitation in re-employing the Applicant if he remains in Australia. At the moment he has some pain in his right knee, right ankle and left knee which to some extent prevents him from presently engaging in work, but there does appear to be a reasonable prospect of his obtaining employment if he remains in Australia. He has been employed for substantial periods in the past. There is no suggestion in the evidence that he will be unemployed.
Taking into account the foregoing evidence of Mr Sauvao’s family and the psychologist, together with that of the Applicant, and being mindful of his young age, and the fact that he now has a child to whom he has considerable affection, I do not consider that he would present any significant risk to the Australian community. The evidence on this consideration weighs strongly in favour of non-cancellation.
Strength, Duration and Nature of the Person’s Ties to Australia
The Applicant arrived in Australia as a minor at the age of six and lived here for approximately five years. He returned to Australia in 2003 and has lived here ever since. A significant part of his childhood between the ages of six and 10 were spent in Australia, and he has been in Australia since his eighteenth birthday. Accordingly, he has a significant degree of connection with the Australian community. The record of offences indicates that he first commenced offending in 2004, although the offences up to July 2007 were of a relatively minor character and the fines and penalties imposed generally do not reflect a high degree of seriousness.
It cannot be said that he has made any positive contribution to the Australian community. However he has worked and supported himself and Ms Daniels.
Importantly the evidence shows that the strength, duration and nature of his family links with members of the Australian community are deep and widespread. This conclusion is based on evidence from the affidavits and oral testimony of the members of his family and from his own evidence as to the extent of his attachment.
This factor must be given very significant weight in this case in favour of non-cancellation.
Best Interests of Minor Children
The Applicant is the father of an infant child towards whom he expresses considerable affection. There has been some limited but regular contact whilst he has been in detention. The evidence indicates that there is a reasonable probability that he will play a positive parental role to the child and that it is improbable that his past misconduct will have any negative impact on the child.
If he is separated from his child there is a real prospect of a significant adverse impact on the child in not having a father figure and this cannot be compensated for by any ability to maintain any satisfactory ongoing contact in other ways. There is no other person who could be said to fulfil a parental father role in relation to the child and no evidence that the Applicant has neglected the child in any way or that the child has suffered any harmful effects. This factor weighs heavily in favour of non-cancellation.
I find that cancellation of Mr Sauvao’s visa is not in the best interests of Mr Sauvao’s infant son.
International Non-refoulement Obligations
This consideration does not apply in this case.
Other Considerations
There are a number of general considerations which must be taken into account but these should receive less weight than the primary considerations.
Effect of Cancellation on Immediate Family
This is a significant consideration because the evidence indicates there will be a serious impact on the immediate family if he leaves. In my view there will be a strong adverse impact on the infant child and also on Ms Daniels. Ms Krueger would also suffer significant hardship. Ms Daniels who lives with Ms Krueger will depend to some considerable extent on the Applicant in raising their child as she is in need of physical and no doubt emotional support and assistance due to a severe spinal problem. This could and probably will be provided by the Applicant.
Effect on Business Interests
There will be no impact on Australian business interests or any member of the Australian community.
Adverse Impact on the Applicant
If removed from Australia to New Zealand, there would clearly be an adverse impact on the Applicant in establishing and maintaining himself in that country, particularly arising from the deprivation of family support and guidance which would assist in his rehabilitation. He has had no meaningful contact with New Zealand for more than a decade now.
The Applicant is relatively young and in good health but with some physical problems. There are no substantial language or cultural barriers to his return but the absence of any social support in New Zealand is a significant factor in this case.
CONCLUSION
Having regard to the foregoing considerations, and taking into account the relatively low level of seriousness of conduct, as well as the prospects of support and rehabilitation when considered in the light of strong family support and ties, the impact of cancellation on members of the family, and the best interests and needs of Mr Sauvao’s young son, I conclude that the Applicant’s visa should not be cancelled.
DECISION
The decision under review is set aside and substituted with the decision that the Applicant’s visa should not be cancelled.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of The Hon B J M Tamberlin QC, Deputy President ............................[SGD]............................................
Associate
Dated 28 March 2014
Date(s) of hearing 10 and 11 March 2014 Counsel for the Applicant Mr P Afshar Solicitors for the Applicant Legal & Company Solicitors for the Respondent Sparke Helmore
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