[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 This Direction superseded Direction No. 44 and came into effect on 28 July 2012 and varies from the previous direction in that it adds, to a range of primary and “other” considerations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…
- AGLC
- Sauvao and Minister for Immigration and Citizenship [2012] AATA 817
- Case
- [2012] AATA 817
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of Direction 55, and the balance of considerations relevant to visa cancellation under section 501CA. The court had to determine if the Minister appropriately considered the nature and seriousness of Mr Sauvao's criminal conduct, the risk of further offending, and the primary consideration of protecting the Australian community. Additionally, the court assessed whether the decision appropriately weighed Mr Sauvao's ties to Australia against the need to protect the community.
The court found that the Minister appropriately exercised his discretion under Direction 55, particularly in relation to the primary consideration of protecting the Australian community. The court noted that Mr Sauvao's criminal history, which included multiple violent offences, demonstrated a serious risk of harm to the community. The court emphasised that the seriousness of Mr Sauvao's conduct and the likelihood of reoffending were significant factors. Despite Mr Sauvao's ties to Australia, the court concluded that these ties did not outweigh the need to protect the community from his potential for further criminal activity. The decision to cancel Mr Sauvao's visa was therefore affirmed.
In light of the above, the court upheld the Minister's decision to cancel Mr Sauvao's visa, affirming that the protection of the Australian community was the paramount consideration. The court found no error in the Minister's assessment or in the balance of considerations applied.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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: 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.