Sione Vito and Minister for Immigration and Citizenship
[2013] AATA 422
[2013] AATA 422
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1689
Re
Sione Vito
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Date 24 June 2013 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
The Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
MIGRATION - visa cancellation - character test under s 501(2) Migration Act 1958 - Ministerial Direction 55 - decision under review affirmed
LEGISLATION
Migration Act 1958 ss 499, 501
SECONDARY MATERIALS
Ministerial Direction [No.55] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC, Deputy President
24 June 2013
BACKGROUND
Mr Vito (the Applicant) is a 48 year old Tongan citizen who arrived in Australia on 5 February 1997. He was granted a Class AS, subclass 801 Spouse (permanent) visa on 13 February 2001 which allowed him to remain in Australia indefinitely.
The Minister decided to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (the Act).
The Minister decided that the Applicant did not satisfy the character test and that as a matter of discretion the visa should be cancelled.
The Applicant seeks review of that decision by this Tribunal.
The issue for determination is whether the decision to cancel the Applicant’s visa should be set aside on the evidence before me.
Section 501 of the Act relevantly provides:
(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.
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; 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; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Section 499 of the Act provides that the Minister may give written directions to a decision-maker as to the performance of functions and the exercise of powers under the Act. These directions are binding on the decision-maker. They apply to the Tribunal, in respect of the exercise of discretion under s 501(2) in carrying out its review function.
On 25 July 2012 the Minister made Direction No. 55 (the Direction) in exercise of the power given by s 499.
The Direction provides four primary considerations which must be taken into account if relevant and given greater weight and there are also a number of other considerations which are to be given lesser weight.
In this case the three relevant primary considerations are the protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the Applicant’s ties to Australia and the best interests of the minor child of the Applicant who is presently 10 years of age.
The Applicant married in Tonga in 1984 and there are four children from that marriage in Tonga. He separated from his wife in 1994 and came to Australia in 1996 as a member of the Tongan football team. There is no evidence he maintained any contact with his former wife or family. Since arriving in Australia he has worked as a builder and a security guard. He has a minor son, A, who is 10 years old. A’s mother is an Australian citizen who was previously the Applicant’s de-facto partner. They separated in 2002. The Applicant has been in Australia for 16 years and has been in prison for six years of that period. During that time he has had contact with A by telephone and some limited contact with A’s mother.
The Applicant’s criminal record is as follows:
Court
Court Date
Offence
Court Result
Sydney District Court
29 June 2007
Sexual Intercourse Without Consent
Imprisonment 8 years and 6 months
Orange Local Court
11 May 2004
Assault Occasioning Actual Bodily Harm
Imprisonment 6 months. Sentence suspended on entering bond to be of good behaviour for 6 months.
Orange Local Court
7 March 2002
Assault Occasioning Actual Bodily Harm
Convicted. Bond to be of good behaviour for 18 months.
Orange Local Court
14 September 2001
Drive with Low Range of Prescribed Concentration of Alcohol
Without conviction. Bond to be of good behaviour for 12 months.
On this record it is clear that the Applicant does not pass the character test under s 501(6) of the Act because he has a substantial criminal record as a result of having been sentenced to a term of imprisonment of more than 12 months. The outcome of this proceeding depends on the question as to how the discretion under s 501(2) should be exercised.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The record of the Applicant shows an increasing trend over a relatively short period towards more violent offences, culminating in the violent sexual attack on an 18 year old intellectually disabled woman, which resulted in severe psychological damage to the woman. The sentence imposed is a severe one, being non-parole period of six years with a total sentence of eight years and six months.
In the sentencing remarks on the sexual assault charge Judge Bell noted that the Applicant was aware that the 18 year old victim was a young woman with an intellectual disability. His honour was not satisfied that the Applicant was aware that the victim could not function within the community without supervision. He noted, however, that the Applicant threatened to kill the 18 year old girl and used that threat or fear to have sexual intercourse. His Honour considered it important that there were two previous offences of assault causing actual bodily harm and that the Applicant was on a bond when he committed the later sexual offence. The young vulnerable female victim had reacted by engaging in acts of self-harm as a consequence of the assault.
His Honour observed that:
“To compel a victim against the person’s will to submit to an act of sexual intercourse is a gross invasion of the victim’s body and physical integrity. Therefore our society regards this as an extremely serious act of criminal conduct. As such the courts are required to impose sentences which are consistent with that seriousness which will seek to defer the offender and other like-minded persons from committing such offences.”
The Direction emphasises that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they will be law-abiding and not threaten harm to individuals.
In the present case three of the serious charges in question are of physical violence. One is a sexual crime against a vulnerable young member of the community. The sentence imposed is very substantial. The records indicate that there have been three crimes involving actual bodily harm over a short period and that cumulative impact of these must be taken into account.
I note that the Applicant has not been warned about the consequences of further offending in terms of his migration status. However, I also note that the absence of a warning should not be considered to be in the person’s favour.
In summary, as to the nature and seriousness of the conduct, I find the Applicant’s conduct to have been extremely serious, violent, sexual and committed against a vulnerable member of the community.
I consider that there will be a substantial risk to the Australian community if the Applicant commits a further offence or engages in other violent and serious misconduct. In this case, according to the guidelines, it is relevant to take into account that the Australian community’s tolerance for risk of future harm becomes lower as the seriousness of the potential harm increases.
On the hearing before me the Applicant insisted on maintaining his innocence in respect of the sexual assault, and he also provided excuses as to why he was not guilty of two previous violent offences. He maintained his innocence in respect of the sexual offence despite the conviction. I am not satisfied that he is truly remorseful, as he claims, for any of these incidents of violence in view of his continued maintenance of the position that he was not guilty.
It is, in my view, significant that as recently as 22 February 2013 the New South Wales State Parole Authority decided not to release the Applicant on parole. In a letter of that date the Board recorded that the Applicant continued to deny the sexual offence. A copy of this letter was given to the Applicant. The Board recommended that he should complete a Sex Offending Program. He was found suitable for a “Denier’s Program” prior to release. The decision not to grant parole was reviewed and affirmed on 23 March 2013.
The Applicant persisted in his denial in relation to the offences of violence at the hearing before me and sought to assert his innocence. This mindset of denial is an important consideration and weighs in favour of a conclusion that there is a real danger of repetition of violent behaviour of a sexual nature by the Applicant.
It is also important to note that at the time of committing the offence of sexual intercourse without consent on 25 June 2004, the Applicant was on a six month bond for assault occasioning actual bodily harm of which he had been convicted on 11 May 2004. This indicates a lack of acknowledgment and appreciation as to the need to comply with the law as regards his conduct. This is an indication that the Applicant did not place great weight on the importance of the six month bond for assault occasioning actual bodily harm.
The evidence does not indicate that if released into the community Mr Vito would have any substantial family support which would be sufficient to lessen any danger to the Australian community. There is in evidence a note of a telephone conversation with his former de-facto partner, the mother of his son A, who was born in September 2002. The mother and the Applicant separated when A was very young and they have remained apart. His former partner has just been married with two step-children and her life has been very busy, and she has not been able to organise visits by the son to the Applicant as at 4 February 2013. The Applicant is not likely to have any significant support from her.
Judge Bell, in his sentencing remarks, on 29 June 2007 was satisfied that the Applicant had available a stable and supportive family environment upon discharge. There was no evidence of this before me as being the present state of affairs.
I note that there is some indication of aggression on the part of the Applicant whilst incarcerated but I do not attach any great significance to this.
I also note that whilst incarcerated the Applicant has taken some steps to rehabilitate himself by undertaking courses, including one relating to horticulture, but he has not undertaken any course in relation to sexual offences or violence. I am not satisfied that these matters outweigh the very real risk of the Applicant engaging in further violent, possibly sexual, crimes if released into the Australian community.
Strength, Duration and Nature of Ties to Australia
The Applicant has resided in Australia for 16 years, six of which have been spent in prison. His criminal record began in September 2001, for a minor offence of low range concentration of alcohol. He arrived as an adult. Apart from his telephone conversations with his son A, there does not appear to be any long enduring family, social or employment links with Australian citizens. He does not appear to have been visited on any regular basis by anyone. He says that he can get work if released into the community and I accept this is a real possibility given his work history and experience.
I do not assign any significant weight in his favour to the strength, duration and nature of his ties to Australia.
Best Interests of Minor Children in Australia
The evidence is that the Applicant’s son A is about 10 years old. Before the Applicant’s imprisonment A stayed with him when he was living with another partner. The Applicant has had contact with A while in prison through telephone calls and A has visited him a few times when the Applicant was in Bathurst. There is a possibility that A may continue visiting him. The de-facto partner, the mother of A, stated that she has no concerns about the Applicant as a parental figure. She trusts him with their son. She intended to keep custody of A if the Applicant is to be released but would allow him to visit the Applicant on weekends. She stated that A might possibly choose in future to live with his father. The mother stated that it would be “devastating” for A and herself if the Applicant were removed from Australia and considered that A needed his father.
I am satisfied that there is some evidence of an indirect relationship between A and his father. I am not persuaded that it is sufficiently direct, strong or regular such that it should be given great weight in light of other considerations. In the interests of A I consider that his father has not shown himself to be a good role model as a father and I do not think A would be adversely affected to any significant extent if his father left Australia. The telephone contact could still continue and perhaps communication could be increased by video or other modern communication. He could visit his father in Tonga perhaps in a few years. I therefore find that the best interests of A are served if the Applicant’s visa is cancelled in the circumstances of this matter.
I note for the sake of completeness that the other primary consideration, namely international nonrefoulement obligations, is not relevant in the present matter.
OTHER CONSIDERATIONS
The evidence does not indicate that the cancellation of the visa would have any significant effect on any of the Applicant’s immediate family. In relation to the de facto I am not persuaded there will be any impact. As regards A, there may be some minimal adverse impact but I do not consider it would be significant or enduring.
There would be no impact on Australian business interests of any person. There is no evidence of any impact of a decision not to cancel a visa on members of the Australian community.
If the Applicant is removed to Tonga, there would be no cultural or linguistic problem with the Applicant re-establishing himself in that country and being able to maintain basic living standards. He came to Australia at the age of 31.
The Applicant is 48 years of age and appears to be in robust physical health and this is not a deterrent to cancellation, nor are there any other problems in relation to medical or economic support for the Applicant in Tonga if he is returned there on the present evidence before me.
CONCLUSION
Having regard to the above considerations, I decide that the decision under review should be affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of the Hon. Brian Tamberlin QC, Deputy President .....................................[sgd]...................................
Associate
Dated 24 June 2013
Date(s) of hearing 11 June 2013 Applicant In person Solicitors for the Respondent Sean Kikkert, DIAC
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