Siorame and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3975

Siorame and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3975 (24 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/7476

Re:Vaelua Siorame

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:24 November 2022

Place:Sydney

The Tribunal decides to:

1.set aside the decision of a delegate of the respondent not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth); and

2.substitute a decision that the cancellation of the applicant’s visa be revoked under s 501CA(4) of the Migration Act 1958 (Cth).

...................................[SGD].....................................

Deputy President B W Rayment OAM KC

Catchwords

MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke mandatory cancellation – menacing driving offences  – intimidation offences – family violence assault offence – first offences – low risk of reoffending – substantial links to Australian community – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 90 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

24 November 2022

1. The applicant was born in Samoa and is a citizen of New Zealand.

2. He is aged 44, is married with five children, three of whom were born in Australia. All are daughters, and their ages are 16, 13, 10, 7 and 6. His wife is also Samoan, and she has an elder daughter, the applicant’s step-daughter who herself has a six year old daughter. The step-daughter lives in Melbourne.

3. All of the applicant’s daughters are in school in Sydney and at the present time the applicant’s wife looks after them by herself.

4. As a result of orders made in the District Court last year, the applicant was unfortunately sentenced to a term of imprisonment for an aggregate term of 20 months imprisonment, with a non-parole period of 12 months. He was committed to prison on 17 May 2021, and was released on the expiration of his non-parole period, on 16 May this year. He was immediately taken into detention and has been in Villawood since that time.

5. The applicant’s conviction related to his actions on 23 April 2021. He pleaded guilty in a local court at Campbelltown on 17 May 2021 to five offences committed on that day. The Magistrate made certain orders as a result of the plea of guilty, which were the subject of an appeal on severity to the District Court and the matters came before Judge Ingram in the District Court at Campbelltown. His Honour reduced the penalties imposed by the local court for all offences. His Honour had placed before him the Crown bundle including the material that had been before the Local Court.

6. The sentence of imprisonment led to a mandatory cancellation of his visa, which led to him being placed in immigration detention. The applicant sought revocation of the cancellation of his visa, which was refused by a delegate and the matter was then brought to the Tribunal.

7. As Judge Ingram said, the applicant had no prior criminal history, and the sentencing assessment indicates that generally he is a person who has a prosocial life, a family life with children to support and an extended family. The assessment indicates that he appears to have a low risk of reoffending, who enjoys the support of the persons who prepared testimonials, and that he has the opportunity to take up employment on release from custody as a forklift driver. He said that he was satisfied that the applicant has good prospects of rehabilitation and that he is unlikely to reoffend in the future.

8. The applicant was forthright in his evidence, and the judge accepted that the applicant, with one exception made full admissions to the police in a recorded interview.

9. The facts reveal that the applicant’s stepdaughter formed a suspicion that in 2020 the applicant had been having an affair with a woman she did not know. The applicant said that the woman in question was in the United States and that they communicated by facebook. He said that the woman was in school with him in Samoa. There was, he said, no affair at all. The step-daughter shared her suspicion with her mother that the affair had taken place on the day of the applicant’s offending.

10. This statement alarmed and angered the applicant, who feared that it would endanger his relationship with his wife. He was at home that day, since he was to work the night shift as a forklift driver. I infer that he exploded when he was told of the step-daughter’s suspicions or allegations.

11. He then had employment that he had had from his arrival in Australia in 2011 to the date of the offending and which he desires to resume if he is released. Several months after starting with his employer he obtained trade qualifications as a forklift driver.

12. He was the main breadwinner in his house, and his wife has had to work two jobs to pay rent and has suffered financially and emotionally as a result of the applicant’s absence from the home since May last year, a period of eighteen months including the six months of immigration detention.

13. Returning to the narrative, the events of 23 April involved two vehicles. Later in the day, after the step-daughter’s statements, the wife left the house with the children and the step-daughter. The applicant sent an abusive and threatening text to the step-daughter. The wife returned later in her car to the home and the applicant drove his car to block the wife’s car from leaving again. He said that he had calmed down somewhat and wanted to apologise for his text and explain that the affair had never happened. The wife and the children including the applicant’s step daughter evaded the applicant and drove off. The applicant followed in his car close to the wife’s car. The wife drove to the police station. The applicant says that he slapped the step-daughter and his wife testified that he did slap the step-daughter and denied that he punched the step-daughter. The police facts, perhaps relying on a statement made by the step-daughter, recorded punches, not slaps. The facts also recorded that during the pursuit, the applicant tried to ram the wife’s car, in which the applicant’s children, his wife and step-daughter were passengers. The applicant denied that statement on oath, and so did the applicant’s wife. Immediately after these events the police took the applicant into custody outside the police station and obtained an apprehended domestic violence order against the applicant. No breach of that order occurred. Its terms were later varied at the request of the wife.

14. The alleged attempts to ram the wife’s care do not seem to be essential elements of the offences of which he was convicted. Nor do the alleged punches as distinct from slaps of the step-daughter deny the assault charge of which he was convicted.

15. I am bound by the convictions and the sentence imposed by Judge Ingram.

16. The applicant attended the Tribunal hearing together with his wife, and his five children. The step-daughter did not attend the Tribunal hearing. I heard evidence from the eldest daughter of the applicant. She said her father’s conduct never involved any violence towards family members, except outside the police station on 23 April. On the contrary, she and her mother described the applicant as polite, kind, kind humble and hard working. His wife described him as hard-working and helpful to others, and as active in his church every Sunday. Each of the applicant’s other children stated that they miss their father, love him and want him home. One of the daughters said how stressed their mother is without the applicant.

17. I accept the evidence of all the family members who gave evidence before me, including that of the applicant. When the applicant told his employer what had happened after his arrest, the employer asked him to get in touch when he is released. If the applicant’s job is not available today, he is clearly motivated to obtain other employment if he is released, so that he may provide for his wife and children.

18. The mandatory considerations I must take into account before exercising discretion in this mater are those specified in Direction 90, which is published and which I will not repeat here. To those considerations should be added any other relevant consideration. The principles stated in clause 5.2 of the Direction inform the various mandatory considerations stated in the Direction.

19. The sentence imposed by Judge Ingram entails that the applicant does not pass the character test.

20. The first relevant consideration is the protection of the Australian community. The offending for which he was sentenced was knowingly driving a motor vehicle in a manner that menaces another person. The second offence was intimidating intending to cause physical or mental harm in a domestic violence setting. Each of those offences were repeated in the case of the applicant’s wife and his step-daughter. He was also convicted of the offence of assault against his step-daughter. Each offence was serious as is reflected in the sentence imposed. As to the risk of repetition of the offending, the first matter to note is that in his 44 years there was no similar or other prior offending by the applicant. The circumstances which led to the offending are described above. There is no reason to expect any recurrence of those circumstances.

21. Turning to the consideration of whether the conduct constituted family violence, it is clear that it did. The applicant has no history of family violence of any kind prior to the events of 23 April 2021. He fully accepts responsibility for his conduct. He has undertaken proper steps to address the conduct which occurred, consistent with his incarceration and detention since 23 April. In prison, he consulted once or twice weekly a counsellor, unless the exigencies of covid prevented the counsellor from attending. In detention he has undertaken online courses in anxiety therapy, anger management, domestic violence, stress management, healthy relationships, basic parenting, positive parenting techniques, depression management, building self-esteem, and building self-esteem in children. He also told me, and I accept, that he proposes to seek professional help to ensure that there is no future misconduct whether or not involving anger.

22. I regard his prior good conduct as itself likely to indicate that he will not offend again, including as to domestic violence.

23. Each of the applicant’s five children love their father and wants the family reunited. It is in the best interests of each of them for their father to return home.

24. The offending of which the applicant was convicted produces the result that the deemed expectations stated in Direction 90 do not favour revocation of the cancellation of the applicant’s visa.

25. Non international non-refoulement obligations affect this matter.

26. No impediments face the applicant if he is removed.

27. The applicant’s links to the Australian community are substantial. They relate to his family primarily, but include the congregation and pastors at his church, and friends that he has made.

28. I asked both the applicant and his wife whether, if he was deported to New Zealand, his family would go with him. Each told me that the question was very difficult, because the five children are settled in school, and it would be hard for them to go to New Zealand and establish themselves again. If the family does not go, the family would be devastated by losing daily contact with the applicant, and so would he. If they all go, the applicant’s wife and children have done nothing to deserve such dislocation, and some of the children are very young. All of them would be separated from their friends, if they are to go to New Zealand.

29. Balancing the various mandatory considerations to which I have referred, and the matter just referred to, in my opinion the correct or preferable exercise of discretion in this case is to revoke the cancellation of the applicant’s visa, so that he may immediately be returned to his family in Sydney.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 24 November 2022

Date(s) of hearing:	22 November 2022
Applicant:	In person
Solicitors for the Respondent:	Ms S Edmondstone, MinterEllison