Sauvao and Minister for Immigration and Citizenship
[2012] AATA 817
•20 November 2012
[2012] AATA 817
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3803
Re
Editor Sauvao
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 20 November 2012 Place Sydney The decision under review is affirmed.
...[Sgd].....................................................................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION –Visa cancellation – Character test – Substantial criminal history – Applicant New Zealand citizen – Application of Direction 55 – Seriousness of conduct and risk of further offending – Protection of Australian community outweighing all other factors – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 501(2), (6), (7)
SECONDARY MATERIALS
Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
Ms N Bell, Senior Member
20 November 2012
Editor Sauvao is a citizen of New Zealand, born in 1985 in Western Samoa. He last arrived in Australia in March 2005 on a Special Category (Temporary) visa. He was 19 years old. He had previously been in Australia from December 1991 to February 1996 and from April 2003 to February 2005. He is now detained at Villawood Detention Centre following the Minister’s decision to cancel his visa on the grounds that Mr Sauvao did not satisfy the character test set out in section 501 of the Migration Act 1958.
Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that on 11 June 2009, Mr Sauvao was convicted of assault occasioning bodily harm and was sentenced for a term of 12 months, albeit suspended. It therefore follows that he does not pass the character test.
The discretion of the Minister to cancel Mr Sauvao’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction No. 44 and came into effect on 28 July 2012 and varies from the previous direction in that it adds, to a range of primary and “other” considerations in the exercise of the discretion, a set of principles expressed to “provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501”. The principles are:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction then contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations in the Direction in respect of visa holders are:
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.
These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.
PRIMARY CONSIDERATIONS
The primary consideration most relevant to Mr Sauvao’s circumstances, given his convictions for violent crimes, is the protection of the Australian community. The other primary consideration relevant to his circumstances is the strength, duration and nature of his ties to Australia.
Protection of the Australian Community
The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
Mr Sauvao has the following convictions:
Date of offence/Charge Court date Court Result Incidents prior to 2009 VAG commit public nuisance
6 June 2004
14 June 2006 Fine: $350
License disqualified until 14 November 2006
Fine: $200
Drive with low range prescribed concentration of alcohol
Unaccompanied learner
14 June 2006 Fine: $350
License disqualified until 14 November 2006
Fine: $200
Uninsured vehicle
Unregistered
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
One penalty imposed
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
Not further punished
Assaults occasioning bodily harm whilst in company
22 May 2009
11 June 2010 On all charges:
Conviction recorded
Sentenced
Imprisonment: 12 MO
To be suspended for: 3 years
Probation period: 2Y
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 by on 11 June 2010
31 October 2011 Conviction recorded
Suspended sentence extended until 11 December 2013
Conviction recorded
Not further punished
Breach of probation order imposed on 11 June 2010 24 February 2012 Conviction recorded
Fine: $400
This record of convictions demonstrates a pattern of increasing seriousness from 2004 to 2009, culminating in a conviction, on 11 June 2010, for assault occasioning bodily harm and a sentence of 12 months imprisonment suspended for three years. That conviction was preceded by three other convictions for assault in 2007, 2008 and 2009. This violent conduct and the pattern it shows is very serious.
In relation to the first assault offence on 25 May 2007, Mr Sauvao said he was out with his cousin for a few drinks and was at one point in the evening walking along the road, intoxicated. He said a Police Officer told him to get off the road and then “maced” him. He then hit the officer. Mr Sauvao said that all he remembers is crossing the road and he remembers nothing about punching a taxi driver or beating on the roof of the taxi cab as was detailed in the Police Report. He was described in the report as intoxicated. He pleaded guilty to and was convicted of common assault, assault officer in execution of duty and resist officer in execution of duty.
In relation to the assault offence on 27 December 2008, the victim was a 65 year old man. Mr Sauvao said he was walking home, intoxicated, and saw a fight underway in front of a house. He said he entered the property and tapped a man on the shoulder and the man swung at him with a saw and stabbed him. He said he hit him “once or twice” as he was falling to the ground. The Police Service Court Brief has Mr Sauvao delivering as many as five blows to the victim and says that others joined in the assault. The man was taken to hospital.
The offence on 8 March 2009 was common assault. Mr Sauvao said he was at home when he received a telephone call from his younger friend, saying he was being “harassed by some Islanders”. When Mr Sauvao arrived on the scene, there was a brawl underway. He said he hit someone and then left. He said he went there to be “a good mate”. He admitted in evidence to the Tribunal that he became involved in the fight and that he had denied to the Police that he had been present. He told the Tribunal he had made that false denial because he was afraid of being implicated in another assault at the same gathering in which a person almost died. The Police Court Brief has Mr Sauvao in the company of approximately 10 other people all calling out “Etti” and encouraging him. Mr Sauvao denied this in his evidence to the Tribunal. The victim of his assault was 16 years old.
The offence on 22 May 2009, for which Mr Sauvao received a 12 month sentence, involved Mr Sauvao smashing a Wild Turkey bottle over a man’s head. Mr Sauvao denied that a friend held the victim against a wall while Mr Sauvao continued to knee him and punch him in the face.
These assaults were unprovoked, with the possible exception of the incident involving the saw. Most of them took place when Mr Sauvao had been drinking or was intoxicated. As acts of violence, one against a minor, another against a man of 65 and another against a Police Officer, they are very serious.
Following 2009, Mr Sauvao was involved in further incidents that brought him to the attention of the police, some of which resulted in convictions.
On 29 January 2011 Mr Sauvao, intoxicated, was abusive to Police and refused to comply with Police directions. He was convicted of obstructing a police officer.
On 14 July 2011 Mr Sauvao was driving his Holden utility when another driver cut him off and then slowed in front of him some distance from the traffic lights, making a provocative sign to him. Mr Sauvao got out of his car and punched the other driver’s window, smashing it. He said he was angry and “in the zone where something else has taken over you.”
On 12 September 2011 Mr Sauvao was admitted to Royal Brisbane Hospital after convulsing on the dance floor of a hotel where he had been drinking with a friend. The Police report records his collapse and that of his friend and that he was taken to Royal Brisbane Hospital for treatment and observation. The report records that Mr Sauvao told Police he had not taken any drugs and had only consumed six vodka drinks and eight tequila shots and some unknown drinks given to him by some people. In evidence to the Tribunal Mr Sauvao said he had drunk one and a half bottles of Jack Daniels as well. His memory of the event was sketchy.
On 28 September 2011 a complaint was made to Police that in a traffic jam on the Esplanade at Surfers Paradise the previous afternoon, a male driving a white Holden Commodore utility, the same vehicle as owned by Mr Sauvao, left his car and approached the car stopped to the right. The complainant told Police that the male had punched the complainant through the car window, pulled the door open and had continued to punch the person. The complaint alleged that the male had walked away and then returned to continue punching the victim. The male then returned to his car and drove off. The Police report details some of the investigations undertaken so far, including obtaining witness’ statements, fingerprinting and photoboard examination by witnesses, and the tracing of the registered ownership of the utility to Mr Sauvao whose physical description was said to match that of the male. There is no detail of any charge having been made.
When this information was put to Mr Sauvao he said the driver of the Holden utility was not him. He said he had lent his car to one of his mates that day, as he said he often does, but could not remember which mate. He said he had asked his friends about the incident and no one had told him the truth. He said he has some mates who go to the coast to do martial arts. He said he had told the same thing to Police who had interviewed him twice in relation to the incident.
The following is an excerpt from the transcript:
And do you know what the state of that matter is for police? Are they still investigating the matter, do you know? ---I think – well, they haven’t charged me with – they have told me that – well, before they – the Immigration brang me to Villawood, they said – I have asked them about it, what’s going on with it. They said that I was in the clear to go, that’s what they have told me.
The police told you that?---Yes.
And di you give the police – you spoke to the police, but did you give them a, sort of, written statement as well?---Yes, I did.
More than a week after the hearing had concluded, the Minister requested that oral evidence from the Police Officer investigating the incident be adduced. I was advised that the investigation is ongoing, which is already apparent from the documents before the Tribunal. No charge has been laid against Mr Sauvao. In a directions hearing following the Minister’s request I decided that in these circumstances and given the time constraints imposed by the Act and the difficulties presented by Mr Sauvao’s detention, and my view that the proposed evidence would not take the matter significantly further, the request to adduce evidence from the investigating officer should be denied.
The matter remains under investigation and unresolved. But, at best for Mr Sauvao, he has casually provided his car to an associate who assaulted another driver without provocation and who will not be honest with him about his actions, notwithstanding that this may lead to further serious difficulty for Mr Sauvao. It speaks of his choice of friends. At worst, it may be another instance of violence on his part. It would be unsafe for me to reach a concluded view in relation to a matter that is still under investigation by the Police.
At 4.50 am on 6 October 2011 Mr Sauvao was driving to work after drinking, on his evidence to the Tribunal, a bottle of Smirnoff the night before. He crashed his car into a power pole. He said his vehicle was a write-off and he sustained serious injuries to his legs. He was charged with driving under the influence of alcohol and lost his licence for nine months. He said it was raining heavily and he slid off the road. He also said his blood alcohol level was low. There is no police or other record of his blood alcohol level before me.
Early in the morning of 29 April 2012 Mr Sauvao and his fiancé, Samantha Daniels, had an argument that brought the attendance of Police who obtained a domestic violence order against Mr Sauvao. He said he had been drinking with a friend since about 10.00 pm the night before and when he came home he and his fiancé argued. When pressed he said he had drunk about two six packs. He said he could not remember what the argument was about. He agreed his fiancé had been worried about his drinking. He said he went to storm out of the house and on his way he kicked a chair which shattered a glass table. He said he then pushed a wardrobe and left the house. He said he was not drunk. He said he considered “drunk” to be not able to walk or speak.
The Police report describes a report from Ms Daniels that a highly intoxicated Mr Sauvao began arguing with her when he returned in the early hours of the morning and she told him to pack his things and leave; that he threw a mirror on the floor, smashing it; that he punched a large hole through a cabinet door; that he grabbed a dining chair, held it above his head and swung it at a glass dining table, making it shatter; that he threw a fish tank onto the floor, making it shatter; and that other occupants of the house encouraged him to stop and to leave the house with them. The Police report also recorded Ms Daniels saying Mr Sauvao had been abusive towards her on a regular basis and that he had thrown property around the house. She is reported as saying she is fearful of Mr Sauvao.
Ms Daniels’ evidence was that she was fearful only for her relationship with Mr Sauvao and worried that their relationship would end. She said they argued and both became “agitated and distressed”. She said she told Mr Sauvao to leave because she “didn’t want to deal with it”. She said that Mr Sauvao threw his phone at the mirror and chipped it and when he opened the wardrobe door with his foot he put his foot through it. She said she was standing in his way and he pushed a chair and it smashed a glass table top. She said that towards the front door Mr Sauvao bumped into a fish tank and it fell onto the floor. She said the Police came because a neighbour heard yelling. She said she did not consider the Police were necessary and told them she did not need them to be there. She said they told her to leave the house and she went to her mother’s home. She said Mr Sauvao “seemed to have had some drinks” but the argument was not about alcohol. She said she had never had any problem with his drinking and did not think alcohol was a problem for him. She said he was never an angry drunk. She described the relationship as loving and supportive.
There are clear discrepancies between the Police report of what Ms Daniels told them and the evidence she gave to the Tribunal. Even accepting Ms Daniel’s version of events to the Tribunal, it is clear that Mr Sauvao acted with anger and force sufficient to shatter a glass table top and put a hole in a wardrobe door. It is significant that the Police pursued and obtained a domestic violence order against Mr Sauvao without any further input from Ms Daniels. Even if the version of events now given by Ms Daniels and Mr Sauvao is correct, it is disturbing and frightening and points to continued heavy drinking and inability to deal with anger.
Mr Sauvao said that from 2010, when he commenced a relationship with Ms Daniels, he has modified his behaviour. He said that since his release from prison in 2010 he has only been intoxicated twice. That is clearly not so. However, I note Mr Sauvao’s unusual definition of “intoxicated”. He pointed to the stability he has with Ms Daniels and the support he has had from her family, and particularly her mother, Mitch Krueger.
Ms Krueger said Mr Sauvao moved into the family’s home in August 2010 after meeting her daughter, Samantha, in early 2010. She described him as proactive and helpful around the house and very helpful to Samantha who had injured her back in an accident. Ms Krueger said she works as a youth worker for a fostering agency, mainly with young people from ages 4 to 14. She said she has a Certificate III in Youth Studies from the University of New South Wales and works with anger management, self-esteem and communication issues.
Ms Krueger described the weekly or fortnightly informal meetings she had with Mr Sauvao to discuss his issues with such things as “body signals”. She said he was not her “client” but that she brought her professional skills to the conversations they had. She said the conversations continued until Mr Sauvao and Ms Daniels moved out to a house of their own. She said her qualifications do not include training as an alcohol counsellor. She said she considers Mr Sauvao may have an alcohol problem because she heard some mention of it at a court hearing and because Mr Sauvao had told her he becomes agitated when he drinks. She was unaware of Mr Sauvao having spent a night in hospital after having drunk to excess and collapsing on the floor. She said she was unaware of incidents in the last two years when he has been intoxicated.
Ms Daniels said she was aware of Mr Sauvao going out drinking with his friends only about twice per month. She said she does not know how much he drinks when he goes out. She knew nothing of his night at the Royal Brisbane Hospital.
Mr Sauvao also said he has undergone formal counselling in alcohol and driving, as he was required to do by the Probation and Parole Office after he lost his licence. He has done no other alcohol related courses and has not attended Alcoholics Anonymous, but he said he requested alcohol counselling at Villawood Detention Centre because he considers he has an “issue” with alcohol and wants to avoid falling back into his old ways. When asked whether he has been intoxicated since his release from prison (where he spent six months on remand), he said he has been intoxicated twice. He later allowed that it was four times. Other evidence, outlined above, suggests this is not correct. It appears that Mr Sauvao’s appreciation of what amounts to intoxication is limited.
Queensland Probation and Parole provided information to the Minister’s Department in 2012. The information included the following in relation to counselling for anger management:
From the assessment process, Mr Sauvao was assessed as having a risk of reoffending (RoR) score of 8 which places him within the low range 1-12 (score derived from static and dynamic factors present at time of assessment).
As specified in the previous report provided in May 2011, it was identified that Mr Sauvao would benefit from attending intervention to address anger management. Mr Sauvao had successfully partaken in intervention to address anger management issues as directed and it was initially believed that he was assessed as needing no further treatment on 15 November 2010 by Coverage international. Mr Sauvao’s counsellor from this agency, Ms Elenora Ospina, informed Probation and Parole at this time that it was recommended that Mr Sauvao engage with an auxiliary anger management program (group or one-to-one counselling).
As a recommendation as such was made, Mr Sauvao was issued with a reasonable direction on 14 September 2011 to attend further anger management counselling through the Youth and Family Service (YFS). It was confirmed on 3 October 2011 that Mr Sauvao would only be required to attend one to two more sessions in order to complete this intervention. On 16 January 2012, a further collateral check was conducted in which Jenny Lang from YFS advised that Mr Sauvao’s case had been closed as of 4 November 2011. Ms Lang declared Mr Sauvao required no further treatment from YFS. She further stated that Mr Sauvao had been engaging with a counsellor from the Gold Coast to address anger management issues. At present, Mr Sauvao has indicated completing one session with this counsellor and that no further treatment was deemed necessary. As Mr Sauvao did not have the contact details of the clinic at his most recent interview, a collateral check is yet to be conducted to verify completion of the intervention.
…
In summary, Mr Sauvao’s response to supervision has been mixed given that he has breached his Order on three occasions for committing further offences and once for failing to notify of a change in address. To his credit Mr Sauvao has engaged with interventions and has reported as directed on all occasions. As such, Queensland Corrective Services are willing to continue working with Mr Sauvao to assist with this transition in his offending behaviour.
I note that a number of the instances of Mr Sauvao’s offending took place in the company of friends and particularly in the company of the brothers Krezic with whom he had lived and adopted as a family in 2008. His violent offence in 2009 was committed in the company of one of the Krezics and his September 2011 collapse on the floor of a hotel also took place in his or the other brother Krezic’s company. Mr Sauvao said that although he is still in touch with the Krezics, he sees much less of them. However, it appears that he still maintains friendships with troublesome or violent individuals if his evidence of his lending his car to the man who assaulted another driver Surfers Paradise in September 2011 is to be accepted.
Although Mr Sauvao’s violent criminal behaviour appears to have peaked in 2009, later conduct indicates that his issues with alcohol use and anger control are far from resolved. Alcohol appears to have played a significant role in his violent behaviour in the past and he continued to drink to excess on occasion. In addition, he appears still to have difficulty controlling anger. Although he gave evidence of a greater awareness of the need to control his angry impulses, and he claimed to have decreased his alcohol consumption, Mr Sauvao appeared not to fully understand the effect on him of his drinking or to have adequate control over his anger. Members of his family appear either to downplay his drinking or to be unaware of its extent and seriousness.
Mr Sauvao’s conduct has been of a kind that poses a significant risk to the community. He has made some progress since his conviction in 2010, but the problems are far from resolved and he could not be considered to have been rehabilitated, given the continuation of his violent outbursts and his excessive consumption of alcohol since that time. I am not impressed by the argument that post 2009 he has not inflicted harm on a person and that, rather, he has taken out his violent impulses on objects, including a window of a car. The violent impulses remain. He has also breached judicial orders on five recorded occasions, three of those being after his period of incarceration. I consider the risk of his reoffending is significant and, given the violent and serious nature of his offences, that is a risk to the community that is unacceptable.
This consideration weighs very heavily in favour of cancellation of his visa.
Strength, duration and nature of the ties to Australia
Mr Sauvao’s biological father and adoptive father live in Australia, as do two of his sisters. Until approximately two years ago he had little to do with them, but now has contact with them often and is building his relationships with them.
Mr Sauvao’s mother lives in Samoa, but is currently visiting New Zealand for short periods to obtain treatment for cancer.
More immediately, however, Mr Sauvao is in a relationship with Ms Daniels and she is pregnant with their child, due to be born in May 2014. They have been a couple since early 2010. Mr Sauvao also has a close and familial relationship with Ms Krueger, Ms Daniels’ mother.
Mr Sauvao’s adoptive sister, Ms Judy Pasene Dunn, who is currently in Samoa but expects to return to Australia early next year, said she is close to Mr Sauvao and intends to stay close to him if he is allowed to remain in Australia. She said Mr Sauvao does not drink alcohol around her and she was disappointed to hear that he had been intoxicated on occasions over the last two years. She said Mr Sauvao listens to her and does as she tells him. Although she did not know who Mr Sauvao’s former friends were, she said he no longer hangs around with the same people as he used to.
There are a number of statements from friends of Mr Sauvao attesting to his importance to them as a friend, and a statement from the pastor of the Samoan Independent Seventh Day Adventist Church.
Mr Sauvao has lived half of his life in Australia. His first offence, a driving offence, was committed in 2004, the year after he last arrived in Australia. His offending escalated steadily from that time, culminating in his 2009 offence and conviction in 2010. His offending has continued after that, albeit without assaults on individuals.
This consideration, keeping in mind the strength of Mr Sauvao’s ties to Australia, weighs against cancellation of Mr Sauvao’s visa. The extent to which it does so is lessened by Mr Sauvao’s having commenced to offend so soon after his last arrival in Australia.
OTHER CONSIDERATIONS
Effect on Immediate Family
Ms Daniel’s evidence was that she will not be able to cope without Mr Sauvao. She has a back injury, following an accident, for which he has provided necessary emotional and personal care and assistance. She said she has had three operations and will have further surgery on her back next year. She said Mr Sauvao helped her with stairs, with dressing, with shopping and by driving her around. She said she is dependent on Mr Sauvao’s income to meet rent and other expenses. She receives a disability support pension of approximately $800 per fortnight and her current rent is $300 per week.
Ms Daniels is 21 years old and, before renting a house with Mr Sauvao, had never lived away from her mother’s house. She said her mother, Ms Krueger, lives about four minutes away. She sees her more often now that Mr Sauvao is in detention. She explained that she is able to meet her rent now because Mr Sauvao’s sister and her five children are sharing the house and the rent. She also said, on further questioning, that she is able to do some shopping and she gets help from her mother and from Mr Sauvao’s sister. Ms Daniels is expecting her and Mr Sauvao’s child in May next year.
Ms Krueger said her daughter will be heartbroken if Mr Sauvao is deported. She said he is a great moral support for her and has helped her cope with her back condition. She said it is very unlikely that her daughter would accompany Mr Sauvao to New Zealand because she would have no family there and family is very important to her.
Ms Pasene Dunn said Mr Sauvao has just rebuilt his relationship with his family and they are looking to him to be the “main provider” for the family.
Mr Sauvao said his mother is dependent on him for financial support in relation to her treatment for cancer and her consequent need to travel between Samoa and New Zealand. Mr Sauvao’s mother, however, is not an Australian citizen or a permanent resident and has no right to remain in Australia indefinitely and so any impact on her may not be taken into account in the exercise of the discretion.
It is clear that Ms Daniels in particular will be significantly affected if Mr Sauvao is returned to New Zealand. This weighs against cancellation. However, I note that Ms Daniels has a supportive family and income support.
Impact on Australian Business Interests
There appears to be no significant impact on Australian business interests.
Impact on the Community
The statements provided in support of Mr Sauvao indicate there is a small community of people who would be distressed to see him deported. However, there would be no discernible impact on the wider community.
Impediments to re-establishment and Basic Living Standards
Ms Pasene Dunn said Mr Sauvao would “backslide” if he were to return to New Zealand. She said his only family there would be his older brother whom she described as “bigger” than Mr Sauvao and as “in and out of jail” for robbery and armed robbery offences.
Mr Sauvao said there is less work available in New Zealand and his chances of finding employment are limited. He also suffers the continuing effects of his motor vehicle accident which currently restrict him to light work.
A further impediment may be the distress he would experience if he is returned to New Zealand. His evidence was that he would be shattered if he was forced to return to New Zealand.
I consider that Mr Sauvao would face an impediment to his re-establishment in New Zealand by way of his physical injury and his distress at having to return. This consideration weighs against cancellation.
THE BALANCE OF CONSIDERATIONS
Of the primary considerations, the protection of the Australian community weighs very heavily in favour of cancellation of Mr Sauvao’s visa. The other relevant primary consideration, his ties to Australia, weighs against cancellation. However, as wrenching as the severing of those ties may be, the protection of the community is still at significant risk from Mr Sauvao who, I consider, has made insufficient progress with his rehabilitation from uncontrolled anger and alcohol abuse to contain that risk to an acceptable level.
Of the other considerations, the effect on Mr Sauvao’s immediate family and the impediments he will face to re-establishing himself in New Zealand also weigh against cancellation. However, I consider that, while they are troubling and sad, they do not outweigh the risk to the Australian community were he to remain here.
On balance, I consider that the weight of considerations, particularly in relation to the primary consideration of protection of the community, is in favour of cancellation of Mr Sauvao’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ....[Sgd]....................................................................
Associate
Dated 20 November 2012
Dates of hearing 31 October and 1 November 2012 Counsel for the Applicant Mr P Afshar Solicitors for the Applicant Legal & Company Solicitors for the Respondent Mr W Sharpe, Sparke Helmore
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