Steven Jione and Minister for Immigration and Citizenship - [2013] AATA 466

[2013] AATA 466

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/1707

Re

Steven Jione

APPLICANT

And

Minister for Immigration and Citizenship

RESPONDENT

DECISION

Tribunal
Deputy President S E Frost

Date 5 July 2013

Place Sydney
Set aside the decision of the Minister’s delegate and substitute a decision that Mr Jione’s visa is not cancelled.
.....................[sgd]...................................................
Deputy President S E Frost
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – strong evidence of rehabilitation from independent and authoritative sources – best interests of minor children – effect of cancellation on immediate family – decision under review set aside and substituted with a decision that the applicant's visa is not cancelled.
LEGISLATION
Migration Act 1958 (Cth): ss 499(1), 499(2), 499(2A), 500, 500(6J), 501, 501(2), 501(6)(a), 501(7)(c)
CASES
Duwai and Minister for Immigration and Citizenship [2013] AATA 339
Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588
Tuatara and Minister for Immigration and Citizenship [2010] AATA 496
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S E Frost

Steven Jione has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record as defined in s 501(7)(c) of the Migration Act 1958 (the Act).
RELEVANT LAW
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” and “the person does not satisfy the Minister that the person passes the character test”.
Section 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record”. Section 501(7) explains the circumstances in which a person has a “substantial criminal record”. One of those circumstances, set out in paragraph (c), is that the person “has been sentenced to a term of imprisonment of 12 months or more”.
As will become clear, Mr Jione does not pass the character test. That means that it was open to the Minister to cancel his visa.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Provided the directions are not inconsistent with the Act or the regulations, the directions must be complied with: s 499(2) and (2A).
The Minister has made a relevant written direction about the way decision-makers should approach the process of exercising the discretion to refuse or cancel a person’s visa. It is Direction no. 55 – Visa refusal and cancellation under s 501. The Tribunal is bound by the Direction: see ss 499(1) and (2A) of the Act and the definition of “decision-maker” in Annex B to the Direction.
I will set out relevant parts of the Direction later in these reasons.
PRELIMINARY MATTER
Special rules apply in the Tribunal to the conduct of review proceedings relating to visa cancellations of this nature. Many of those special rules are contained in s 500 of the Act. One of them is contained in s 500(6J), which provides relevantly that in a case such as this:
the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
In opening Mr Jione’s case, his solicitor Mr Tremelling sought to present to the Tribunal a document described as the “Applicant’s Facts and Contentions”. The Minister’s representative Ms Hayes objected on the basis of the “2-day rule” in s 500(6J) of the Act. Oral argument on the question of my acceptance of the document was deferred to the second day of hearing, when Mr Tremelling relied on a decision of the Tribunal (DP Tamberlin QC and SM Toohey) in Tuatara and Minister for Immigration and Citizenship [2010] AATA 496 to support his submission that I can have regard to the document. In Tuatara the Tribunal said at [17]-[20]:
17.      Mr Tuatara contends that, correctly interpreted, ss 500 (6J) does not apply to a Statement of Facts, Issues and Contentions because it is not a document “supporting” his case but, rather, a summary of submissions proposed to be made at the conclusion of the hearing and a summary of the case sought to be made out on evidence and arguments which are presented to the Tribunal at the conclusion of the hearing.
18.      He contends that the purpose of ss 500 (6J) is to prevent the Minister being taken by surprise, necessitating an adjournment which could lead to a breach of the time limit in ss 500(6L). Sub-section 500 (6L) provides that a decision under review is taken to be affirmed if the Tribunal has not made a decision within 84 days of the applicant being notified of it. If the Minister’s interpretation is correct, he says, he would be prevented from referring to decided cases or making submissions on the evidence in the course of the hearing after cross-examination, and that such unwarranted restriction would produce serious procedural unfairness and cannot have been intended.
19.      In support of this submission, Counsel for Mr Tuatara refers to the decision of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 25 per Gray J, where His Honour referred to ss 506(H) and 506(J):
The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the Second Reading Speech in relation to the bill by which the provisions were introduced... The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in ss (6L).
20.      Having regard to these considerations, we are of the view that ss 500 (6J) does not apply to a Statement of Facts, Issues and Contentions. It is not evidence but, rather, a summary of the case and the submissions intended to be made out by Mr Tuatara after producing the necessary evidence and submissions to back up those claims.
That conclusion, in my view, is undoubtedly correct.
In this case, the Applicant’s Facts and Contentions does not seek to establish facts; instead, it invites inferences from facts established elsewhere, and it makes submissions as to the way the Tribunal should exercise its discretion under s 501. In those circumstances I am not prevented by the “2-day rule” in s 500(6J) from having regard to it. I marked it as Exhibit A35.
BACKGROUND
Mr Jione was born in Fiji in 1981. He is 31 years old.
His parents separated when he was three years old and he was then placed in the care of his mother’s adoptive parents. Until he was about eight years old he believed that his mother’s adoptive parents (his grandparents) were his parents, and that his mother was his aunt.
His mother, Makarite, married Michael Wong in 1987. Michael had a son, Anselm, from a previous relationship. Anselm is Mr Jione’s step-brother. He is about a month older than Mr Jione.
There are two children of Makarite’s marriage to Michael Wong. They are Leon, born in 1986, and Lily, born in 1987. Leon is Mr Jione’s half brother and Lily his half sister. They were both born in Fiji.
In 1990, Makarite, Michael, Anselm, Leon and Lily all relocated to Australia. Mr Jione stayed behind in Fiji with his grandparents. His mother explained to the Tribunal that she and Mr Jione had both effectively been adopted by the same family. When she and her husband wanted to move to Australia, her father, Mr Jione’s grandfather, was “OK” with the idea that Mr Jione could come to Australia with them, but her mother, recognising that she was about to lose her daughter, was unwilling to lose her grandson as well. Makarite accepted that. She told her mother that she would come back in two years’ time, after she had established herself, to get Mr Jione and take him to Australia. When she went back her mother was still not ready to surrender her grandson.
Mr Jione did eventually come to Australia – first, in 1994, on a tourist visa, when he stayed for six weeks to visit his mother and the rest of the family, and ultimately, in December 1997, when he re-entered Australia at the age of 16, on a Class AH Subclass 101 Child visa. He has not left Australia since.
Mr Jione had gone to school in Fiji to year 10 level and he continued his schooling in Australia after he arrived here. At the age of 18, and part way through year 12, he left school to commence an apprenticeship as a mechanic with Kmart Tyre and Auto in Bankstown. He ended up working there for three or four years. He then got a job with GEM Engine Reconditioning, in Chipping Norton, for a few months. Later he worked as a furniture removalist with a company in Moorebank.
Sexual abuse
Mr Jione was subjected to sexual abuse from the age of nine. The abuse lasted for about a year. The perpetrator was an “uncle” who lived with the family. The abuse stopped when the uncle moved out of the home.
Alcohol and drugs
Mr Jione started drinking alcohol in Fiji when he was about 12 or 13. He would drink home brew and spirits until he passed out. He continued drinking when he came to Australia.
He also experimented with marijuana in Fiji. He did this “out of curiosity”. He told the Tribunal that he “didn’t get along with it”. When he came to Australia, he discovered there were other drugs, such as cocaine, ecstasy and speed. He would take them “whenever it was available”.
Criminal behaviour
In January 2005 Mr Jione was convicted in the Local Court in Campbelltown of the offences of common assault and contravene apprehended domestic violence order (ADVO). The victim of the offences was Nicole Clark, his then de facto partner and the mother of their son. Mr Jione received a 12-month good behaviour bond for each offence. He was also found guilty of the offence of destroy or damage property and fined $500.
The NSW Police Incident Details report records the following facts in relation to the events that were the subject of these offences:
…
The victim and the accused have been in a domestic relationship for the past 12 months and have one 7 week old child together. The victim moved out of the premises in early December due to the relationship being verbally abusive. About 9.00pm the accused and the victim were at the accused premises […] with their seven week old baby son. The victim has received a phone call on her mobile from a friend. The accused became angry that he could not hear the TV over the conversation and complained to the victim. …
The accused began yelling at the victim and then began to slap her across the face with both hands but mainly with the right hand to her cheeks. While the accused was doing this he was also kicking the victim to her legs with his right leg. This assault continued for about 10 minutes. The accused then stopped and sat on the lounge. …
The victim has told the accused “It’s over”. The accused became angry again and took the bottle off the victim and began feeding the baby. The accused said “If it’s over, start packing your bags”. The victim began to pack her bags and the accused began to plead with the victim not to leave. The victim stated to the accused “I promised myself that I’m not putting up with this violence. I’m packing my bags”. …
The accused went to the kitchen and picked up a knife. He came toward the victim with the knife by his side but with the blade pointing toward the victim. The accused was holding the baby in his arms. The accused said to the victim “If I can’t see the baby, you won't see the baby”. The accused then put the knife down. The victim called the police and the accused began to abuse the victim again saying “I’m gonna get locked up because of the AVO”. The victim dropped down onto a mattress to get some things when the accused has kicked her to the head. The victim has received a bleeding nose from this. The victim pulled a pillow up to cover herself. The accused has then bent down and hit the victim to the head with the baby in his arms. The accused has then grabbed the victim by her head and smashed it into the tile floor. He has then stood on her head a couple of times.
…
In January 2007 Mr Jione was convicted in the District Court of the offence of maliciously inflicting grievous bodily harm with intent to do so. The Crown appealed the sentence of 8 years imprisonment imposed by the District Court. The Court of Criminal Appeal (CCA) accepted the following summary of the facts relating to the offence:
… on the evening of 7 July 2005 the respondent and the victim, Colin McIntosh, were drinking separately at the Ingleburn Hotel. At a time between about 11:30 pm and 12:30 am the respondent and the victim were observed arguing. A witness saw the respondent push the victim before punching him a number of times in the head. The victim fell to the ground and did not move. The witness tried to calm the respondent down and the respondent walked back into another area of the hotel. At about 12:30 am another witness observed a scuffle taking place in the hotel car park. The witness saw the respondent standing over the victim, punching him in the head and kicking his body. The victim did not retaliate. After the assault the victim got to his feet, stumbled and walked away. As he did so the respondent taunted him and yelled in his direction. The respondent walked over to where the victim was standing and punched him. The witness saw the victim on the ground with the respondent kneeling over him. The respondent punched the victim about eight times to the facial area.
The witness, a female, attempted to assist the victim by grabbing the respondent’s shoulder. As the respondent moved his arm back to strike the victim again his elbow hit the witness in the cheek. The respondent then punched the victim in the head at least three more times.
…
The female witness left the hotel a short time later with some friends. As the group approached the corner of Nardoo and Oxford Streets they saw the victim lying on the ground. He was in a distressed and unconscious state, not moving and gasping for air. An ambulance was called and the victim was taken to Liverpool Hospital.
…
The victim was left in a permanent vegetative state as a result of his injuries. He was left incontinent of urine and faeces. Although the victim was capable of small amounts of a modified diet, his full nutritional requirements were being met by intragastric feeds. The medical report of Dr Adeline Hodgkinson of 21 August 2006, which was before the District Court, notes as follows:
…
With regard to prognosis it is now more than a year post injury. He remains fully dependent in mobility and personal care. Further improvement in the level of care is unlikely. His level of communication is severely impaired. While he is able to respond to simple one step commands, communication breaks down for complex commands and his verbal responses are inconsistent for “Yes” “No”. He responds to family and familiar people but he is unable to express his wishes. He is likely to require full time nursing care indefinitely. He is unlikely to ever regain the ability to reach a normal level of communication ability and certainly would be incapable of employment in any capacity.
Mr Jione was still subject to the good behaviour bonds for the common assault and contravene ADVO offences when he committed this later offence. He admitted in evidence that he had drunk eight or nine beers and consumed “base”, a liquid or paste version of the amphetamine “ice”, on the night of the offence.
In setting aside the District Court sentence of 8 years imprisonment, and imposing a prison sentence of 12 years with a non-parole period of 8 years, the CCA (Grove J, with whom Hodgson JA and Simpson J agreed) made the following remarks in relation to the seriousness of Mr Jione’s offence:
…
14.      Although her Honour referred to the consequence of “catastrophic injury” to the victim, an assessment that the offence should be categorized in the mid range is manifestly wrong. In the recounting of facts it can be observed that the actus reus emerged from more than one attack on the victim despite attempts by bystanders to restrain the Respondent. It is submitted on his behalf that he was not shown to have “stomped” on the victim but it is difficult to accept that contention in the light of the shoe marks detected by medical attendants on his face.
15.      The Crown submission that the injuries suffered by the victim were as serious as they could be suffered by anyone short of death has a compelling force. This offence was well above the category of mid range and in the category of high seriousness.
…
19.      I formally record the reason for departing from the standard non-parole period as the assessment that the offence lies above the middle of the range of seriousness for such offences.
…
MR JIONE’S EVIDENCE
Mr Jione made two written statements and gave oral evidence in these proceedings.
In his first written statement he referred to his childhood in Fiji. He explained that although he had a good relationship with his grandparents, he felt “unloved” and “left behind” when his mother left Fiji for Australia. In his written statement he said:
As a kid I felt lost and unwanted and alone and resentful about the situation. It was not until I was a lot older and grown up did I come to an understanding about my mother’s situation.
He said that when he first came to Australia he saw his mother and stepfather argue and that he witnessed violence in the home (which he described in cross-examination as “arguments”, “things being thrown around”). He did not get along with his mother then.
His written statement contains glimpses of insight into the causes of his criminal behaviour:
...
31.      When I was about 9 years old, I was sexually abused as a child by someone I was entrusted to and from memory it went on for a year. It was an Uncle who abused me. I felt abandoned afraid and alone.
32.      Since then, I think I rebelled a lot and had a lot of anger in me because of what happened. I started drinking regularly and fought a lot and grew up thinking that was a normal thing to do.
33.      Because I felt violated as a child, I built a barrier inside to protect myself and I grew up to be defensive which affected my relationships. My antisocial behaviour got worse. I was angry and lost. I wouldn’t open up to anybody. I swallowed everything and imploded and let it build. Before that I had no guidance at all. I was lost trying to find my feet at the time of my crime.
34.      Regarding the domestic offence I committed in 2005, I pleaded guilty. I had a fight with my ex partner and smashed and broke the house up. I assaulted her. I regret all that I had done that night. She was the mother of my son. I was 23. My son was a month old at the time. I was wasted on alcohol. I was a bad alcoholic. I take responsibility for my actions. There are no excuses. I have changed my bad attitude and behaviour with a better attitude to life.
35.      I started an anger management program – I began a few classes on anger management before I was incarcerated but regrettably I was incarcerated before I finished them, and I was still drinking.
...

Mr Jione said that his commitment to rehabilitation commenced almost immediately after he committed the offence in July 2005. He remembers sitting in the Remand Centre in Silverwater and thinking to himself, “What have I done? I’ve gone too far.” He told the Tribunal, “from that day, I’ve continually progressed”. In sentencing Mr Jione in the District Court in January 2007, 18 months after the offence, Judge Ashford made the following comments, which appear to be consistent with Mr Jione’s claim of an early commitment to rehabilitation:
…
Since in custody the offender has attended anger management, alcohol awareness, conflict and communication courses. He is also attending Bible Study courses and Chapel services and the Chaplain at Parklea has provided a supportive reference. He has expressed a desire to change his life and has also expressed what appears to me to be real remorse and regret for his actions. He has advised the court he will continue to attend courses and engage in any support programme required. Until this assault he had been in employment. It thus appears there may be good prospects of rehabilitation. He made frank disclosures to the police and to Mr Taylor, Psychologist.
…
Mr Jione continued to undertake a number of education and rehabilitation courses while in prison, including:
·Pre-employment course;
·Getting SMART (Self Management and Recovery Training);
·SMART Recovery;
·Certificate 1 Transport & Distribution;
·Certificate 2 Transport & Distribution;
·Certificate 4 Small Business Management;
·Information technology course in Computer Studies;
·General Maths.
In addition to that, he was approved to participate in the Tertiary Preparation program at the University of Southern Queensland.
A Pre-Release Report prepared by Corrective Services NSW in April 2013 indicates Mr Jione’s level of commitment to rehabilitation and self-improvement:
On 24 February 2008, whilst at Junee Correctional Centre, Mr Jione applied to enter the Violent Offenders Treatment Program, but was found to be unsuitable. In March 2008, he applied to attend Think First, but was once again found to be unsuitable by virtue of his low/medium LSI-R[1] rating.
On 16 April 2009, Mr Jione completed the 24 sessions of CALM[2], with the programme’s facilitator noting ‘excellent participation.’
On 21 June 2012, Mr Jione successfully completed the 10 modules of Managing Emotions. The facilitator summed up his contribution in these terms ‘Steve displayed a mature, open and honest outlook as a group participant and was able to demonstrate coping skills to manage his emotions on a day-to-day basis.’
[1] The Corrective Services NSW (CSNSW) website explains that LSI-R (Level of Service Inventory – Revised) is a “54-item actuarial assessment used to measure the likelihood of general reoffending and underlying criminogenic needs which contribute to reoffending. [It p]rovides a risk of reoffending raw score, a group risk level (from low to high risk), profile of needs and their severity and protective factors. The LSI-R is the standard tool used by CSNSW to measure risk and needs for all offenders and is based on the Risk/Needs/Responsivity principles”:
[2] Controlling Anger and Learning to Manage it
Mr Jione said in his written statement:
...
57. Before I did the rehab courses – I would normally have resorted to violence. Now I have picked up new skills which help me renegotiate altercations in a non aggressive way. And it helps me feel good about handling a conflict situation knowing I can manage it without resorting to violence. This has improved my self esteem.
58. I attend AA meetings and have support from other members to keep sober. I don’t crave drinking any more. I know the alcohol is no good for me.
...
Mr Jione has also undergone regular counselling, at his own instigation, to help him deal with his childhood sexual abuse. He has been working with his counsellor, Rachel Hart, since 2008. Ms Hart’s evidence is dealt with in greater detail later in these reasons.
Mr Jione was granted work release from November 2012 to April 2013 with Costa Logistics. He explained that this involved him leaving the prison to go to work each morning on weekdays, and then returning to the prison in the evening. He was also granted weekend release from the prison to his parents’ house on four occasions, which involved him leaving the prison on a Friday evening, spending the weekend at his parents’ house with his family and then returning to the prison on a Sunday. It seems that the only reason these arrangements ceased was because of the cancellation of his visa and the resultant change in his prison classification level.
Mr Jione has been in custody for the last eight years, since being arrested shortly after the July 2005 offence. In prison he has been subjected to urine analysis on eight occasions and has tested negative each time. This is despite the presence of drugs and alcohol in the prison environment and the opportunity Mr Jione has had to consume them. He said simply “I chose not to”. Mr Tremelling asked why that was the case, and he replied, “It’s not for me. I said in the beginning, that’s the end. That’s it.” He also indicated that his choice not to consume drugs and alcohol would continue after his release from prison. Indeed, while he was on work release, he would walk past bars, but was not tempted to go inside. He said he was putting into use some of the strategies he had learnt in his various rehabilitation courses. It is clear from the way he talks that his son is a significant motivator. Mr Jione said, “My son’s important. That’s what I always think of if I am ever tempted.”
Mr Jione spent some time talking about his relationship with his son, N, who is now eight years old. Mr Jione’s mother and stepfather have brought N to visit Mr Jione in prison on a regular basis. Mr Jione also spent time with N while he was on weekend release at his parents’ house, as Ms Clark, N’s mother, would make arrangements for N to stay with his grandparents during these times. Ms Clark has encouraged a continuing relationship between N and his father. Mr Jione said that he has come to understand the value of relationships, and he emphasised his relationship with his son: “I value most my son. I know he needs me.”
Mr Jione is now involved in a close relationship with a friend of ten years, Suewhelen Howe. They plan to marry. Ms Howe has two sons – A, aged 12, and B, aged four. A and B have different fathers. Mr Jione has a relationship with both boys. A calls him “Dad” even though, as Mr Jione put it, “I haven’t adopted him yet”. His intention is to take on both of Ms Howe’s sons as his own.
THE EVIDENCE OF MR JIONE’S EX-PARTNER, NICOLE CLARK
Ms Clark confirmed that since Mr Jione has been in custody she has allowed visits between him and N “in order that they would share a close bond”. N’s grandparents (Mr Jione’s parents) have taken N to visit his father in prison as far afield as Junee and Cooma.
Ms Clark feels that Mr Jione “has changed for the better over the years”. She wants Mr Jione to have a supportive role in N’s life. On a scale of zero to 10, she rated Mr Jione’s parenting skills as eight.
She said that she spoke to Mr Jione on the phone regularly, although not for the past 3 or 4 months. She said it was probably 5 or 6 years since she had seen him in person.
When they were living together in 2004/2005, she said there were two occasions when she got frightened. This is what triggered her application for the ADVO. She acknowledged that some of the disputes occurred when she was pregnant with N.
She said that she is entirely confident about leaving N with Mr Jione. She is also very happy to leave N with Mr Jione’s parents and wants N’s relationship with his grandparents to continue. She trusts them to such an extent that she allowed N to travel to Fiji with them when he was three years old.
She also said that Mr Jione’s parents have helped her and N financially since Mr Jione has been incarcerated, but that they are no longer in a position to help as much and she is struggling financially right now. She also noted that Mr Jione had provided her with very welcome child support payments while he was on work release from November 2012 to April 2013.
THE EVIDENCE OF MR JIONE’S SISTER, LILY WONG
Ms Wong is employed as a case worker with disadvantaged youth.
She last saw her brother at Easter. She has noticed big changes in him since before he went into prison. She feels that he is now able to identify the triggers that made him violent and he deals with his challenges better now.
She said that she had known about his drinking when he was younger but she did not know about the drugs; nor did she realise his drinking was so extreme. Nevertheless, she is now confident that he can continue to abstain from alcohol and drugs. She said, “I honestly don’t think he’ll put himself in that position again. It’s too big a risk.”
Ms Wong has observed that N “adores” his father. She described Mr Jione’s parenting as “definitely really, really good”.
THE EVIDENCE OF MR JIONE’S BROTHER, ANSELM WONG
Mr Jione’s brother Anselm works as an accountant. Since Mr Jione’s imprisonment Mr Wong has had contact with his brother four or five times a year.
The biggest change he has observed in his brother is his maturity. He said that Mr Jione can now express himself better and can talk about his emotions and his goals. He communicates better. He said that work release had motivated his brother, who now wants to continue increasing his skills in logistics.
He described Mr Jione as a “very loving” father with a “strong” relationship with N. He said that N loves his father and looks up to him.
Mr Wong is “absolutely” confident that his brother will not reoffend.
Like his sister Lily, Mr Wong said that he knew Mr Jione was drinking when he was younger but he did not realise the full extent of his drinking habits.
Mr Wong has three children, a 7-year-old girl, a 4-year-old boy and a 2 ½ year old girl. When asked if he had any concerns leaving his children alone with Mr Jione, Mr Wong said simply, without hesitation, “No”.
THE EVIDENCE OF MR JIONE’S WORK RELEASE EMPLOYER
Antony Shih was Mr Jione’s employer at Costa Logistics during the work release period from November 2012 to April 2013. He described Mr Jione as a “good” employee, whose attendance was “exemplary”. Mr Jione worked as a “picker/packer”, filling orders for major customers such as Coles Supermarkets. He had a good work ethic and was honest. Mr Shih was disappointed that the work release period came to an end when Mr Jione’s visa was cancelled.
Mr Shih said that he had no concerns about the safety of others in Mr Jione’s presence. He said that Mr Jione always got on well with his workmates. He confirmed that he would be keen for Mr Jione to return to work with Costa if that opportunity presented itself and that ongoing employment for Mr Jione was available. Mr Jione would be able to start on a casual basis as a contractor through one of Costa’s labour hire agencies, working around 30 hours per week on average. He said that if his performance was satisfactory, the company would look at making him a company employee, then after about six months he would be offered a permanent role, subject to performance. He said that Mr Jione had shown the right performance levels and character to be considered for that kind of advancement.
THE EVIDENCE OF MR JIONE’S PARTNER, SUEWHELEN HOWE
Ms Howe explained that she had known Mr Jione for about ten years. During Mr Jione’s first six years in custody, he would call her every Sunday. They also had several face-to-face visits over the years. Since the nature of their relationship changed about two years ago (they “fell in love with one another” and want to get married), she has tried to see him fortnightly. She described him as her “soul mate” and her “rock”. She said that she talks to him every day. When he was on work release he would call her in the morning before going to work and then again when he got back to prison if the phones were still available.
She described the change between Mr Jione ten years ago and now as “dramatic”. He used to be “very angry”; now he is “caring”. She said that he does not get angry any more as he would have in the past. She noted that Mr Jione does not believe he will drink alcohol again, and she believes him. Her level of confidence on that issue is “10 out of 10”. She said that if he drank alcohol at home she would report him to his parole officer
Ms Howe described Mr Jione’s relationship with her two sons as “very loving and caring”. She said that A has a special bond with Mr Jione. He is “the only father he’s ever known”. She said that A has daily contact with Mr Jione over the phone and has been to the prison to visit him about five times. She confirmed that A calls Mr Jione “Dad”. She said that A pays attention to what Mr Jione says to him and respects Mr Jione’s values and opinions.
When asked if she would leave her boys in Mr Jione’s care, she said that she would be “100% confident” of their safety. In cross-examination, though, she said that she would not feel comfortable leaving the boys in Mr Jione’s care if he was drinking.
She observed Mr Jione with N at Mr Jione’s parents’ house last Christmas. She described their relationship as “like any father/son relationship”. She said that N is “happy” when he is with his father. She said Mr Jione is a “great father”, very understanding and positive in the way that he speaks to the children.
Ms Howe, somewhat surprisingly, was not aware of all the details of Mr Jione’s assault on his ex-partner, Ms Clark. She said that she did not know about his holding a knife and pointing it in Ms Clark’s direction, or that, as described in the police report, he had stood on Ms Clark’s head.
She knew that in the past he had drunk alcohol regularly, and in large quantities. She said that she did not consider that his drinking was a problem when she first met him. She described herself as a “social drinker” but said she does not keep alcohol at home. Her attitude now is that if she went out with Mr Jione she would not drink. She said, “I’d be happy not to drink.”
THE EVIDENCE OF MR JIONE’S MOTHER, MAKARITE WONG
Mrs Wong has been visiting her son in prison once a month, almost every month, for the past eight years.
She expressed deep and, in my view, genuine regret over her failure to devote more time to her son as he was growing up. She explained that she was always working or studying.
She said that before he went into prison, her son had difficulty communicating with others. He was not confident communicating with his family and he found it difficult to open up even to her.
She now thinks he has changed. She puts that down to the fact that now, for the first time in his life, Mr Jione is responsible for someone else – his son, N. He has had a long time to reflect on what he needs to do for N.
She said Mr Jione has a very close relationship with N. She said that the bond between them has been growing stronger with every visit N makes to his father. She rated Mr Jione “10 out of 10” for his skills as a father and for his commitment to N. She said that his relationship with N is the incentive for Mr Jione to stay off drugs and alcohol.
Mrs Wong supports Mr Jione’s relationship with Ms Howe. She said in her written statement:
…
3. Suewhelen is the one who hung in there for Steven. She is the one he would contact if he rang home and we were all out. If he was depressed and needed to talk, and if we were not there for him, he would ring Suewhelen. Throughout all that time, she has always been there for him and she always kept an eye out for him.
…
5. My son trusts her as much as he trusts me. I see it as a very positive relationship. She works and is a struggling mother and does not rely on the dole and supports her kids as a single mother. So I respect her. She works really hard.
…
THE EVIDENCE OF MR JIONE’S FATHER, MICHAEL WONG
Mr Wong is the one who has been driving his wife and N to visit Mr Jione in the various correctional centres over the last eight years. He has driven them to Parklea, Junee, Cooma, Long Bay and Silverwater. Since the visa cancellation, the visits have taken place at least once a week.
Mr Wong expressed a “9 out of 10” level of confidence that Mr Jione would not relapse into drugs or alcohol. He is confident that Mr Jione’s rehabilitation has been a success. He said, “I can bet my life on it.” He also said that he has no concerns about leaving N in Mr Jione’s care.
THE EVIDENCE OF MR JIONE’S COUNSELLOR, RACHEL HART
Ms Hart works for the Service Assisting Male Survivors of Sexual Assault (SAMSSA), part of the Canberra Rape Crisis Centre. She is a Professional Counsellor with a major in Abuse and Abuse Trauma. She is a graduate member of the Australian Institute of Professional Counsellors. She has been working at SAMSSA for eight years, the first four as a counsellor and the last four as the Counselling Team Leader.
She provided a written report stating that she has been working with Mr Jione since 18 March 2008 when he was referred by the psychologist at Junee Correctional Facility. They began regular telephone counselling sessions. These sessions continued on a fortnightly basis when Mr Jione was transferred to Cooma Correctional Facility, in support of the monthly face-to-face sessions she was able to conduct with Mr Jione. She stated that “any time that Mr Jione was transferred he sought out ways of remaining in contact and continuing with his counselling”.
In her oral evidence Ms Hart said that since Mr Jione was moved from Cooma to Silverwater, they have been in contact less frequently because they were unable to make the same arrangements through the prison as previously. Instead Mr Jione would call her when he could to ask about times when she was available, and then he would call her back during those times and they would conduct a telephone session.
In her report she commented on the efforts and progress she believes Mr Jione has made during their sessions:
Mr Jione has worked hard on the sequelae of childhood trauma; it is unusual for a client of our service who is incarcerated to work on his traumatic memories as the environment is not conducive for deep feeling work.
I have seen Mr Jione apply great tenacity in working on his childhood abuse and the symptoms that resulted from it, including; anger management, anxiety, depression, substance abuse, relationship issues, use of violence and risk taking behaviours. He has made excellent progress in all of these areas and he has told me that he intends to continue working on these when he is released. I will continue to provide support and counselling to Mr Jione as well as provide appropriate referrals if needed.
…
Mr Jione has shown remorse and regret for his crime and I believe him to be [a] man who had not had the opportunity to work on the trauma impacts of his abusive childhood. Now that he has started, continued and actively pursued counselling for five years I believe he has made the changes needed to not only be released on parole but also to remain in Australia as a productive and supportive father, son and citizen.
Ms Hart’s oral evidence further indicated how impressed she is with Mr Jione’s approach and his progress. In describing Mr Jione’s efforts at rehabilitation in regard to the matters that they discussed in their sessions, she stated:
I have worked with lots of detainees and I have never had another one who has contacted me as regularly when he moved to try and continue on. I think he is very tenacious with his contact.
When asked by Mr Tremelling to rate Mr Jione’s commitment to recovering from the sexual trauma he experienced as a child, she responded “I would rate it very high”. Asked how high she would rate his efforts on a scale of zero to 10, she responded “I would rate it as 10”.

She went on to describe the efforts Mr Jione has made at gaining insight into the links between his history of sexual abuse and his anger management, stating “he has done a great deal of work on his anger” and that he can recognise his “fight and flight responses”, has developed new skills to allow him to tell the difference between anger and aggression and he is now able to understand why he is feeling angry. She added that he uses mindfulness techniques to calm himself, as well as calming breathing techniques and cognitive behaviour therapy techniques, which she described as Mr Jione’s asking himself questions such as “what is this anger? Is it secondary emotion? And what is the emotion underneath? And looking at that, dealing with that”. She continued that it is about “knowing that a feeling is not a behaviour, knowing that a feeling is a feeling and he doesn't have to have a behaviour that is attached to that, especially around the anger”.
When asked to describe Mr Jione’s efforts at gaining insight into his sexual abuse and his offending behaviour, she stated:
He can see, I think, with his offending and use of drugs that he had developed these strategies for trying to keep himself safe, and he can see that now. He can see the difference between the man that he is now and the little boy that was abused.
Asked to describe Mr Jione’s insight into the links between sexual abuse and his substance misuse, she stated:
He understands that when you are young you use the resources that you can to deal with, you know, the flashbacks, the feeling of betrayal, the nightmares, all that kind of stuff, the fact that he has to live with these memories, so he realises that that is what he was using drugs for and now he has been building new skills so that he doesn't have to use drugs or alcohol.
Having regard to the skills that she believes Mr Jione has obtained, she told the Tribunal that she is “very confident” in his rehabilitation, and continued:
I think that he – you know, he doesn’t have to carry this around as a secret himself anymore. He can get support for it from his family, from professionals, from his partner, you know, even from his son and the love that he has with him. He has a different view on things now.
When asked by Mr Tremelling to describe, based on the time she has spent counselling him, her level of confidence that Mr Jione would not re-offend, she stated:
Well, I’m not an expert on recidivism but I do know that when people start to deal with their childhood traumas and it’s no longer this secret that they can’t talk about and they are not using all these other strategies to try and not deal with it, that, you know, they can go in a different direction.
When prompted to describe her confidence that Mr Jione is headed in a “different direction”, she explained:
I’m very confident. I would say that he has excellent chances of, you know, getting out back into society and having a relationship with family, partners, his son and working towards being part of the community.
THE EVIDENCE OF THE PSYCHOLOGIST, DR PETER ASHKAR
Dr Ashkar has various qualifications in psychology including a Master of Forensic Psychology, a Master of Clinical Neuropsychology and a PhD in Forensic Psychology. He interviewed Mr Jione for three hours on 12 June 2013 and prepared a report based on that interview, interviews with family members, a psychometric assessment and a review of documentation relevant to Mr Jione. At the opening of his oral evidence he was asked by Mr Tremelling to describe the progress Mr Jione has made since the commission of the offence which led to his imprisonment. He said:
Based on the documentation I have reviewed and my assessment with Steven Jione I would have to say I have been very pleased and in fact quite impressed with the progress that he has made in terms of his rehabilitation since his incarceration in 2005.
He added:
In my 10 years of practical experience working with criminal offenders I have not seen anyone who has surpassed Mr Jione in terms of their commitment and work towards their own rehabilitation following an offence of this type.
Mr Tremelling asked Dr Ashkar to give his opinion on what he would consider to have been the most significant factors relating to Mr Jione’s offending. He responded:
Well, firstly, and perhaps most obviously, his use of alcohol and other illicit substances at the time of the commission of those offences. Secondly, I believe that Mr Jione had very significant and unresolved issues of sexual abuse when he committed those offences which at that time had – he had not disclosed or discussed with anyone, either in a personal or professional manner, and I think that was a particularly significant factor in the underlying anger and aggression that he demonstrated at that time. I also believe that his early experiences of identity crisis, not knowing who his biological parents were, feeling abandoned by his mother when his mother and her family relocated to Australia when he was eight or nine years old, and growing up with that sense of unworthiness and abandonment also contributed to the negative feelings that he was experiencing at the time that he committed the offences – or the July 2005 offence.
Asked about the likelihood of Mr Jione’s reoffending, Dr Ashkar expressed the following opinion:
After having reviewed the documentation from Corrective Services’ assessments of his risk of violence and after conducting my own more recent assessment of his risk of violent offending behaviour, that’s quite clear that his risk falls within the low or low to medium risk category, but certainly towards the low end of risk when compared with other violent male offenders. That is based on objective assessment. It’s not based on clinical opinion. It’s based on psychometric tools that have demonstrated efficacy in the prediction of violence.
MR TREMELLING: So in your opinion what is the likelihood of reoffending?---In my opinion his likelihood of committing a violent offence if he were to be released into the community is low. I am not in a position where I can offer a more accurate estimate than either low, medium or high because we don’t have the technology or the equipment to really allow us to predict with any more accuracy than either low, medium or high, to be perfectly frank with you.
Dr Ashkar explained that the three major factors that bear on that likelihood are:
·whether the person has a psychopathic personality;
·the age of onset of criminal behaviour; and
·the person’s adult criminal record, and in particular, the number of offences committed.
Dr Ashkar explained, first, that Mr Jione had a low rating in relation to psychopathy; and second, that his age of onset of criminal behaviour, at 23, is considered “late onset”. Finally, two sequences of offences (the first being the domestic violence episodes and the second the “maliciously inflict grievous bodily harm with intent” offence) is considered to be “very low”. Secondary factors include mental illness (of which there was no evidence) and substance abuse (which, although at the time of the offences was a “significant driving factor”, Dr Ashkar now rated as “no longer an issue today”, based on eight years of urinalysis without a positive result). These results led Dr Ashkar to conclude that Mr Jione was “towards the low end of the violence risk scale”. He added:
Mr Jione has an exemplary prison record which tells me that he is certainly able to manage his anger and aggression, to the extent that he still feels those things, in a very stressful institutional setting without any difficulty. And I certainly believe that is a very important factor to consider when attempting to predict what his future behaviour might be like.
… providing Mr Jione continues with the recommended supports and treatment and counselling, in my opinion I would not consider his risk of violence to be any greater than my own.
In cross-examination Dr Ashkar readily acknowledged that his assessment of risk would change – “most definitely”, he said – if Mr Jione were to engage again in alcohol or other substance abuse.
THE MINISTERIAL DIRECTION
The purpose of Direction no. 55, as set out in paragraph 6.1(1) of the Preamble, is to “guide decision-makers performing functions or exercising powers under s 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test”.
The Direction sets out a number of “principles” that provide a framework for decision-makers in approaching their task. These principles are set out in paragraph 6.3 of the Direction as follows:
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 and 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, or 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.
Paragraph 7 of the Direction states that, informed by the principles just outlined in the preceding paragraph, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph a) above refers to two distinct parts of the Direction, Part A and Part B, both of which contain considerations that decision-makers “must take into account” when making decisions. Part A is the relevant part for the purposes of Mr Jione’s application because it contains the considerations relevant to visa holders (as opposed to visa applicants, who are dealt with under Part B). The considerations, in turn, are divided into “Primary considerations” (paragraph 9) and “Other considerations” (paragraph 10).
Paragraph 8 of Direction no. 55 provides as follows:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The primary considerations are set out in paragraph 9(1) 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 paragraph 10 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.
PRIMARY CONSIDERATIONS
I will deal with the primary considerations in the order in which they are addressed in the Direction.
Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1 of the Direction deals with this consideration, in the following terms:
9.1      Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1    The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)   The frequency of the person's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i)   Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
An important principle in paragraph 9.1(1) of the Direction is that “the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”. The paragraph notes that when considering protection of the Australian community, decision-makers “should have regard to” this principle.
Of course, no decision-maker can protect the Australian community from harm which has already resulted from criminal activity or other serious conduct. Prior criminal activity has already caused harm, and the exercise of a discretion to cancel a person’s visa cannot undo that harm. Plainly enough, the principle is directed towards protecting the Australian community from future harm. In that enquiry, factors to which decision-makers “should also give consideration” are set out in paragraph 9.1(2).

One of those factors is the “nature and seriousness of the person’s conduct to date”. In considering that factor, I must have regard to the principles and other matters set out in paragraph 9.1.1.
Mr Jione’s conduct to date falls into two broad categories. The first category is the conduct that he engaged in up to and including July 2005. The second category is the conduct that he has engaged in since that time.
Into the first category fall seven years of non-offending behaviour after his arrival in Australia, followed by the domestic violence offences and breach of ADVO and, later, the offence of maliciously inflict grievous bodily harm with intent. Consistently with the “principles” in paragraph 9.1.1(1) a) and b), I view the offences very seriously. In relation to the later offence, and as noted earlier in these reasons, Grove J in the Court of Criminal Appeal, with whom the other judges concurred, concluded at [19]:
I formally record the reason for departing from the standard non-parole period as the assessment that the offence lies above the middle of the range of seriousness for such offences.
Earlier, his Honour had said at [15]:
The Crown submission that the injuries suffered by the victim were as serious as they could be suffered by anyone short of death has a compelling force. This offence was well above the category of mid range and in the category of high seriousness.
Mr Tremelling submitted that the second sentence of [15] represented a Crown submission rather than the view of the Court. However, I consider that on a proper reading of the paragraph, that sentence represented the finding of the Court. In my view, there is no inconsistency between the second sentence of [15] and what was said in [19].
The Court allowed the Crown’s appeal on sentence, and sentenced Mr Jione to 12 years imprisonment, with a non-parole period of eight years. If it had not been for an early guilty plea, leading to a 25 per cent discount, the head sentence would have been 16 years.
All of Mr Jione’s offending conduct took place in a relatively short period of time, between December 2004 and July 2005. It would not be accurate to describe his conduct as exhibiting any trend of increasing seriousness.
The second category of Mr Jione’s conduct comprises his behaviour since his incarceration – his seeking out and undertaking of counselling with Ms Hart; his undertaking of rehabilitation and education courses as set out in [33] of these reasons; his avoidance of exposure to alcohol and drugs, as confirmed by urine testing; his general behaviour leading to a reduced security classification as early as February 2008, which precluded him from the Violent Offenders Treatment Program; his successful undertaking of a work release program from November 2012 until April 2013; and his undertaking of four instances of weekend leave from prison, the most recent in March 2013. In relation to this period Mr Jione has been described in the following ways:
·“I have worked with lots of detainees and I have never had another one who has contacted me as regularly when he moved [from one correctional centre to another] to try and continue on. I think he is very tenacious with his contact.” – Ms Hart;
·“I have been very pleased and in fact quite impressed with the progress that he has made in terms of his rehabilitation since his incarceration in 2005. In my 10 years of practical experience working with criminal offenders I have not seen anyone who has surpassed Mr Jione in terms of their commitment and work towards their own rehabilitation following an offence of this type.” – Dr Ashkar;
·“Mr Jione appears to have been an exemplary inmate. He has not incurred any institutional misconduct charges. The consistent testimony of correctional officers is that he has been a positive and cooperative inmate, someone who has sought to take every opportunity afforded him to address these issues and to prepare for lawful and productive community life.” – Pre-Release Report, Corrective Services NSW, 9 April 2013.
The second factor listed in paragraph 9.1(2), and to which a decision-maker “should also give consideration” in the context of the protection of the Australian community, is the “risk to the Australian community should the person commit further offences or engage in other serious conduct”. In this context, paragraph 9.1.2(1) explains that the enquiry centres on the question “whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community”.
In the assessment of the level of risk, a decision-maker “must have regard” to the nature of harm that would be caused should the person engage in further criminal or other serious conduct, together with the likelihood that the person may do so, taking into account information and evidence on the risk of reoffending and evidence of rehabilitation. However, while information and evidence on the risk of reoffending, and evidence of rehabilitation, are expressly to be taken into account in the assessment of the likelihood of engaging in further criminal or other serious conduct, the Direction is silent as to what should be taken into account in assessing the nature of harm that would be caused. How, then, is one to assess the nature of harm? A simplistic answer is that the nature of harm should be assessed against a repetition of the very type of offending that the person committed in the past. But that seems artificial when the information and evidence concerning likelihood points away from a repetition of that type of offending.
Nevertheless, and despite the apparent artificiality of the enquiry, past behaviour appears to be the only reasonable basis on which the nature of harm can be assessed. To attempt to assess the nature of harm that might be caused by Mr Jione’s engaging in behaviour of a kind that he has never exhibited before would be so speculative as to be meaningless: see also what Jacobson J said in Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588 (on appeal from the AAT) at [45]-[46] (my emphasis):
45. … the Tribunal took into account the fact that Mr Salahuddin’s past conduct was serious, although not at the most serious end of the scale. …
46. What the Tribunal was doing … was to project from Mr Salahuddin’s past conduct the nature of the harm should he re-offend. As Katzmann J observed in Obele [Minister for Immigration and Citizenshipv Obele [2010] FCA 1445] at [58]-[59], the Tribunal considered the seriousness and nature of the past conduct as well as the likelihood of it being repeated. Assessment of the risk and nature of re-offending is routinely based on past behaviour.
It is trite to add, in relation to the last sentence of Jacobson J’s comments, that all past behaviour, where relevant, is to be taken into account, not just past offending behaviour. Evidence of past non-offending behaviour is expressly contemplated to be relevant, as paragraph 9.1.2(1)(b)(ii) makes clear. I also note that Mr Jione’s behaviour (including his ability to remain free from alcohol and drugs) has been tested, albeit not extensively, in the non-custodial environment of work release and weekend release. Nothing adverse has been reported.
I conclude that, while the nature of harm that would be caused to the Australian community should Mr Jione engage in further criminal or other serious conduct is very serious, the likelihood of that occurring is low. Accordingly, I determine, as required by paragraph 7(b) of the Direction, that the risk of future harm by Mr Jione is not at an unacceptable level. It is a level of risk which, in my view, the Australian community should tolerate.
I emphasise that my conclusion on the likelihood of Mr Jione’s reoffending is based not on mere guesswork, but rather, as paragraph 8(2) of the Direction requires, on my giving appropriate weight to information and evidence from independent and authoritative sources. I rely in particular on the comments of Ms Hart and Dr Ashkar and the excerpt from the Pre-Release Report prepared by Corrective Services, all of them reproduced at [112] of these reasons. In each case, the speaker or the author has considerable experience dealing with criminal offenders and no predisposition in favour of Mr Jione.
The strength, duration and nature of the person’s ties to Australia
This is the second primary consideration as set out in Direction no. 55.
Paragraph 9.2 of the Direction deals with this consideration, in the following terms:
9.2Strength, duration and nature of the person's ties to Australia
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Jione has resided in Australia since he came here fifteen and a half years ago, at the age of 16.
All his offending occurred in the period from December 2004 to July 2005. He was 23 years old at the time. He is now 31.
Mr Jione was gainfully employed from early 2000, when he left school, until July 2005. He has been incarcerated since July 2005, although he was engaged in work release from November 2012 until April 2013. During his work release period he had employment links with Costa Logistics. He also made child support payments to Ms Clark.
His family links are almost entirely with relatives in Australia. His mother, stepfather, step-brother Anselm, half sister Lily and half brother Leon all live here. He has a son who lives here and his son’s mother lives here. He plans to marry Ms Howe and to live with her and her two sons in Sydney. The arrangement for Mr Jione to live at Ms Howe’s home has been approved by the Parole Service.
The best interests of minor children in Australia
This is the third primary consideration as set out in Direction no. 55.
Paragraph 9.3 of the Direction deals with this consideration, in the following terms:
9.3Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.
It is common ground that there are three minor children to be considered in this context. They are Mr Jione’s son N and Ms Howe’s sons A and B.
N lived with Mr Jione from the time of his birth, in December 2004, and for at least part of the period up to July 2005, when Mr Jione was incarcerated. Since then Mr Jione’s parents have ensured that the relationship between Mr Jione and his son has been maintained to the maximum extent possible. They have taken N to visit his father on a regular basis – even travelling to Junee and Cooma when Mr Jione was in correctional centres in those towns. This continuing contact has been supported and encouraged by N’s mother.
Mr Jione said that he has had weekly contact with N when he has been in metropolitan correctional centres and monthly contact when he has been out of Sydney. More recently, when on weekend release, he was able to spend time with N at Mr Jione’s parents’ home. He described his relationship with N as “very close”.
Ms Clark described the relationship the same way. She said that N loves his father, and “he always talks about him”. She stressed the importance of the father-son relationship and expressed the view that it is in N’s best interests for Mr Jione to stay in Australia, for N’s physical and mental health. She added that N was sad for a few days when he became aware that his father might be deported to Fiji.
In view of the apparent success of Mr Jione’s rehabilitation, there is a strong likelihood that he will play a positive parental role with N in the future. The intensity of that role and the relationship with N would be diminished if Mr Jione were not allowed to stay in Australia. Dr Ashkar noted that there is considerable literature to demonstrate that “children who have a relationship with their father, all other things being equal, have better developmental outcomes” than children who do not.
The Minister ultimately accepted that it is in N’s best interests for Mr Jione’s visa not to be cancelled, but submitted that less weight should be given to that consideration since Mr Jione has been in prison for most of N’s life and, furthermore, N was exposed to a very violent offence when he was a very young child.
Having considered all relevant factors, I formally determine that cancellation of Mr Jione’s visa would not be in N’s best interests. That is a consideration that weighs significantly against cancellation of Mr Jione’s visa.
Ms Howe’s elder son, A, aged 12, has developed a special bond with Mr Jione. As noted earlier in these reasons, A calls Mr Jione “Dad”. Ms Howe considers Mr Jione to be the only father that A has ever known. Nevertheless, the nature and duration of Mr Jione’s relationship with A is not as strong as his relationship with N.
The Minister accepted that Mr Jione has an existing relationship with A but submitted that he has played a very limited parental role. I accept that submission. The Minister also accepted that it is in A’s best interests for Mr Jione’s visa not to be cancelled, but submitted that very little weight should be given to that consideration given the very limited extent of the relationship.
I determine that cancellation of Mr Jione’s visa would not be in A’s best interests, although that determination carries much less weight than the corresponding determination in relation to N.
Mr Jione’s relationship with Ms Howe’s younger son B is not as strong as the one he has with A. Mr Jione does not play a parental role. B appears to have an existing relationship with his own father. B has visited Mr Jione on only a very limited number of occasions.
The Minister accepted that it is in B’s best interests for Mr Jione’s visa not to be cancelled, but submitted that very little weight should be given to that consideration given the very limited extent of the relationship.
I determine that cancellation of Mr Jione’s visa would not be in B’s best interests, but that consideration bears very little weight.
Whether Australia has international non-refoulement obligations to the person
The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in Mr Jione’s case.
OTHER CONSIDERATIONS
As noted above, paragraph 10 of Direction no. 55 states that “other” considerations, where relevant, must be taken into account. However, paragraph 8(4) states that primary considerations should generally be given greater weight.
All the considerations set out in paragraph 10 of the Direction are to some extent relevant to Mr Jione’s circumstances.
Effect on immediate family
All the members of Mr Jione’s immediate family – his mother, father, brothers Anselm and Leon and sister Lily – are Australian citizens.
Mr Jione’s parents are experiencing some health issues at the moment. His mother has Type II diabetes and is also waiting for cataract surgery. His father was involved in a car accident a few years ago and has lingering back problems as a result. He is now unable to lift things (even the groceries) and cannot attend to chores around the house such as lawn mowing. Mr Jione has been able to help with some of these things, although only to a limited extent during his weekend releases.
Anselm said that he would feel “a sense of loss” if Mr Jione were sent to Fiji. He also said “it would really hurt” his parents. Lily said her parents would be “crushed”.
Mrs Wong spoke of the difficulty she and her husband would experience in continuing to assist, financially, with N’s upbringing because she is no longer working. Her husband echoed that concern. Mrs Wong also noted that she and her husband, as N’s grandparents, have “no rights” in relation to N, so that if N’s mother decided to move away, they may lose access to their grandson.
Impact on Australian business interests
Mr Shih from Costa Logistics indicated that when Mr Jione’s work release entitlement was withdrawn, the company had been able to cover Mr Jione’s shifts with casual labour. He confirmed that it would be “business as usual” if Mr Jione were sent to Fiji.
Impact on members of the Australian community
Child support payments to Ms Clark would no doubt cease if Mr Jione were sent to Fiji.
Ms Howe would be denied the opportunity to live in Australia with the man she plans to marry. She could possibly follow him to Fiji, and take A with her, but she doubted that B’s father would allow her to take B.
There is no information from the victim or the victim’s family other than the Victim Impact Statement prepared by the victim’s wife in November 2006. She and her three children, who would now be aged 17, 15 and 12, have been effectively deprived of a future with their husband and father. The victim himself has had the prospect of a normal life taken away from him. It is probable that the victim and his family would be distressed by a decision not to cancel Mr Jione’s visa.
The extent of any impediments in the home country
Mr Jione is a 31-year-old man, seemingly fit and healthy. There are no apparent impediments he would face in establishing himself and maintaining basic living standards if he were removed to Fiji (bearing in mind the qualification in paragraph 10(1) d) of the Direction). In Duwai and Minister for Immigration and Citizenship [2013] AATA 339, Senior Member Letcher QC said at [31]:
Life in Fiji may be financially harder than Australia for the average person but that is a factor common to the whole of the population.

I agree.
WEIGHING THE CONSIDERATIONS
Ms Hayes, for the Minister, urged upon me the words of paragraph 6.3, particularly those in subparagraph (2) and (3), which I repeat here:
(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 and 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.
She submitted that, if this is not a case that would warrant cancellation on the basis of subparagraph (3), it is difficult to imagine one that would.
I disagree.
What weighs significantly in Mr Jione’s favour, and against the Minister’s submission, is the information and evidence from independent and authoritative sources – see [112] of these reasons and paragraph 8(2) of the Direction – that strongly indicates that Mr Jione has rehabilitated himself. None of this information and evidence was available to the Minister’s delegate at the time the visa cancellation decision was made.
I have determined that the risk of future harm by Mr Jione is not at an unacceptable level. Added to that is my assessment (accepted by the Minister) that it is not in N’s best interests for Mr Jione’s visa to be cancelled. Furthermore, although carrying less weight, I have also concluded – again, consistently with the current view of the Minister – that it is not in the interests of either A or B for Mr Jione’s visa to be cancelled.
The remaining relevant “primary” consideration – the strength, duration and nature of his ties to Australia – also weighs in Mr Jione’s favour.
The “other” considerations do not tip the balance against Mr Jione such as to outweigh the overall favourable assessment of the primary considerations. I conclude that the preferable decision in this case, based on a proper and fully-informed application of Direction no. 55, is that Mr Jione’s visa should not be cancelled.
I set aside the decision of the Minister’s delegate and substitute a decision that Mr Jione’s visa is not cancelled.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost.
...........................[sgd].............................................
Associate
Dated 5 July 2013

Dates of hearing 25, 26 and 27 June 2013

Solicitors for the Applicant
Mr G Tremelling, of Legal Aid NSW

Solicitors for the Respondent Ms C Hayes, of Clayton Utz

viewed 1 July 2013

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1707
Re	Steven Jione
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

Tribunal	Deputy President S E Frost
Date	5 July 2013
Place	Sydney

Dates of hearing	25, 26 and 27 June 2013
Solicitors for the Applicant	Mr G Tremelling, of Legal Aid NSW
Solicitors for the Respondent	Ms C Hayes, of Clayton Utz