Tani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 5292

Tani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5292 (2 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5553

Re:Lucas Tani

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:2 December 2020

Written reasons:     30 December 2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing in this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.

................Sgnd........................................................

Senior Member Dr N A Manetta

Catchwords

Migration – failure of character test - primary considerations – risk of reoffending - protection of Australian community – best interests of minor children – expectations of Australian community – low risk of reoffending -  stabilising partner relationship – Tribunal revokes mandatory cancellation of visa.

Legislation

Migration Act 1958

Cases

FYBR v. Minister for Home Affairs [2019] FCAFC 185

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356

REASONS FOR DECISION

Senior Member Dr N A Manetta

30 December 2020

1. After I delivered my oral reasons, I received a request for written reasons, which I now publish.

2. This is an application by Mr Lucas Tani seeking a review of a decision of the respondent’s delegate dated 9 September 2020. By his or her decision, the delegate refused to revoke the mandatory cancellation of Mr Tani’s visa. The cancellation had occurred under s 501 of the Migration Act, 1958 (“the Act”).  Mr Tani had earlier been convicted of serious offences and had been required to serve part of his lengthy aggregate sentence of imprisonment on a full-time basis in jail. For this reason, his visa was mandatorily cancelled, and, under the relevant provisions, properly so.

3. Mr Tani requested revocation of the cancellation decision, but an exercise of this statutory discretion in his favour refused.  He has now applied to this Tribunal. The Tribunal’s task is to decide whether to affirm the decision under review or to set it aside. In determining the application, the Tribunal proceeds de novo on the merits. That is to say, the Tribunal may affirm the decision under review if that is the correct or preferable decision to reach on the evidence adduced before it, notwithstanding the presence of error in the delegate’s decision. Equally, the Tribunal may set aside the decision under review if that is the correct or preferable decision to reach on the evidence adduced before it notwithstanding the absence of any discernible error in the delegate’s reasons. At the hearing before me, Mr Tani represented himself; Mr Cunynghame represented the respondent.

   STATEMENT OF CONCLUSION

4. I have decided to set aside the decision under review and to substitute a decision that the mandatory cancellation of the applicant’s visa be revoked.

   BACKGROUND FACTS AND REASONS

5. I now set out the background facts and my reasons for this conclusion.

6. Mr Tani was born on 16 February 1981 and was, accordingly, 39 years of age at the time of the hearing before me. He was born in a small town in the province of Popondota in Papua New Guinea. His father died in 2017, but his mother is still alive and continues to lives in the town. He has three siblings: one older brother, one older sister, and one younger brother.

7. Mr Tani’s parents divorced when he was 16 years of age.  He remained with his father. Most of his primary and secondary schooling was undertaken in Port Moresby. In 1999 he completed his secondary education. As I understood his evidence, Mr Tani did not pass his final year of high school, but he went on to obtain a certificate in Accountancy at a private business institute. He passed with very good marks, he said. He completed this accounting qualification in mid-2002 together with a certificate in Financial Services.

8. He took about a year to find a job after completing his qualifications.  In mid-2003 he was working with the St John Ambulance Service as a clerk.  He also attended incidents with the Service. After that, in about 2005, he secured a job with the Salvation Army as an accounts clerk.

9. Earlier on in his life he had contact with his mother and siblings. From 2012 or 2013, however, communication with his siblings ceased. There was a family disagreement concerning his father’s landholdings. He last spoke with his mother in 2017, he said, when she rang to let him know his father had died.

10. Mr Tani first visited Australia in 2006 when he attended a religious conference called “Hillsong”.  Mr Tani has a strong Christian belief. He grew up as an adherent of the Salvation Army’s Christian faith.  In 2007 he married his wife– now his ex-wife– who had been working in Papua New Guinea. She had been working as a Salvation Army primary school teacher. They attended band practice together and shared this common interest. They first met in 2005 while he was working with the Salvation Army as an employee.

11. The couple came to Australia in 2007 and married here.  They spent three weeks with Mr Tani’s parents-in-law before settling in Baulkham Hills. In December 2007, Mr Tani received a job offer from Kennard’s Hire to work as an accounts-receivable clerk.  His wife was working for Elders Real Estate at the time. Mr Tani gave evidence that they were happy together and wanted to start a family. She struggled in the beginning, he said, because of medical issues.  In 2008 she fell pregnant and things were going well at that point. He said they had fun together and often went out and travelled.  Their son James was born in October 2008.

12. I should add at this stage that both Mr Tani and his wife were “sworn soldiers” in the Salvation Army. This position required them to be exemplars of their faith.  One obligation they had was not to drink alcohol. 

13. Mr Tani said that in October 2008 or thereabouts he had a social drink at work because he did not want to stand out as teetotal. His wife reproached him for the drink saying it should not have happened given their religious convictions. Mr Tani said that after that, he did not drink. In 2008 he resigned from Kennard’s Hire. He attended TAFE in 2009 and also undertook casual labouring work. He did say that during this period he drank, but occasionally only, although he conceded that when he would go out to drink, he sometimes drank a great deal.  He said that his wife did not approve of his drinking. He was clear in his evidence that in 2008 he was drinking only occasionally.  I deal with the unreliability of this aspect of Mr Tani’s evidence later.

    Criminal offending

14. I now turn to Mr Tani’s offending. Mr Tani has a lengthy criminal history: see Ex R1, pp 26ff.  Taking the offences in chronological order, I note that of the first four offences, three involved driving with an excessive blood-alcohol level and the fourth involved driving while disqualified from holding a licence. These offences occurred over quite some time. It is clear that Mr Tani must have been drinking to excess frequently and not merely occasionally as he suggested in his evidence.  Mr Tani maintained that at this time his relationship with his wife was still “okay” but he felt that his parents in law were involved too closely in their relationship and that he and his wife were not taking enough responsibility for their own lives. The couple began to argue frequently at this point. Nevertheless two children, Rhema and Bella, were born to them. Mr Tani denied any physical violence towards his wife but one early offence in his record involved a common assault against her. 

15. Mr Tani said that in 2009 alcohol did become a problem for him. He said he had disagreements with his wife about his drinking. He was also feeling sorry for himself and began to drink for that reason as well.  I accept this evidence although I believe his problems with alcohol began much earlier.

16. Mr Tani accepted that the seventh to twelfth offences in his criminal record involved heavy intoxication.  I note that the seventh offence involved a common assault and that the eighth to twelfth offences involved contravening restrictions in an apprehended violence order.  These were the result of his heavy drinking. In 2014 to 2015 he and his then wife were still living together. One of the contraventions involved his leaving a very threatening message on his wife’s phone. The phone message left his wife feeling very scared and intimidated by his threats of violence.

17. Pausing at this point, I note that Mr Tani’s history of offending is lengthy even at this stage. Alcohol abuse has lain at the root of the offending. None of the offending involved the imposition of a sentence of imprisonment that had to be served, but there were terms of imprisonment imposed, and these mark out the offending as particularly serious.  In addition, it is quite clear that, all in all, Mr Tani had deviated seriously and repeatedly from expected norms governing behaviour in the community in relation to driving while having excessive alcohol in his blood, in respect of assaults, and in respect of his relationship with his then wife (where apprehended violence orders were in place to prevent his aggressive misbehaviour towards her).

18. In order to keep these oral reasons within bounds, I have not described these offences in detail, but I have taken them into account.  They form an important context in which the entirety of Mr Tani’s offending must be evaluated.   As I have said, they demonstrate a trend of persistent deviation from the law fuelled by misuse of alcohol.

19. I now turn to consider the subsequent offending which resulted in jail sentences which were required to be served. The later of the two offences took place on 4 May 2019.  At this point, Mr Tani was no longer living with his wife and was sharing rental accommodation. He had been drinking heavily one evening. He came home and found his housemates were eating dinner, but they did not invite him to join in given his intoxication.  Affronted, he threatened that if they did not give them their dinner, he would “get his boys around”. They retreated into a room and closed the door. He referred to one of his housemates as “an Indian piece of shit”. He threatened them both and reached for a knife block before the door was shut against him.  He yelled out that he was going to kill them both.  He smashed a kitchen window when he threw a salt-and-pepper shaker against it.

20. Earlier, on 1 April 2019, Mr Tani had demanded money of a victim, a railway employee, on a station platform. He grabbed hold of the employee and threatened to punch him.

21. These offences led to the imposition of jail terms. It is sufficient for present purposes to note that on appeal by Mr Tani, the appellate court (the District Court of NSW sitting in Parramatta) indicated an appropriate sentence was an aggregate two years’ jail and imposed a sentence of 18 months commencing on the day of the Court’s judgment, 5 November 2019.  Part of this sentence had to be served in jail.

22. Mr Tani’s visa was cancelled on the basis of the sentences he had received in respect of the offending.  On his release from jail, Mr Tani was immediately taken into detention. He has been either in jail or in detention since 5 May 2019, which was approximately 19 months at the time of my oral decision.

23. The delegate was required to apply Direction 79 issued under s 499 of the Act. I too must apply direction in my consideration of this matter.  In other matters I have pointed out by way of background the general context and purpose of the direction and I now set out paragraphs [24] – [28] of that discussion in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356:

    “24 I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.

    25 The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by “non-citizens”. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk “non-citizens” pose is unacceptable.

    26 The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending 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 the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

    27 In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.

    28 I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.”

    Considerations arising under the Direction

24. I am required to consider as a primary consideration the protection of the Australian community. I am to have regard to the nature and seriousness of the noncitizen’s conduct a date and the risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct.

25. I must consider a range of factors set out in paragraph 13.1.1 when evaluating the nature and seriousness of the noncitizen’s criminal conduct.  I am required me to treat violent offences very seriously. I note that Mr Tani has many apprehended violence orders against him. I note the violence that was part of his assault against his two housemates and upon the railway employee at Penrith.  Violence has been a clear feature of Mr Tani’s offending in Australia in the past as well.

26. I am required to have regard to the fact that crimes violent against women are viewed very seriously regardless of the sentence imposed. I have regard to this principle as well. Mr Tani’s ex-wife, for example, has been subjected to violence and threatened violence and his female housemate was also subjected to a very serious threat of violence.

27. I must have regard to the sentences imposed by the courts. The sentence the District Court imposed in relation to the two most recent offences reflected the gravity of Mr Tani’s offending. Importantly in this connection, I note that Mr Tani has offended many times, and I believe there is a clear trend of increasing seriousness. The offending has escalated most recently to offences that have led to the imposition of terms of imprisonment that were required to be served in jail. There have been many incidents involving alcohol and alcohol-associated violence spread over a number of years.  Mr Tani has regularly abused alcohol to the detriment of members of the community.  The cumulative effect of his repeated offending is very considerable and I must have regard to this.

28. I must also consider the risk to the Australian community. I am instructed in paragraph 13.1.2 to have regard to “cumulatively” the nature of the harm to individuals or the Australian community (should the noncitizen engage in further criminal or other serious conduct) and to the likelihood of the noncitizen engaging in further criminal or other serious conduct.

29. I regard the nature of the harm to individuals or the Australian community that Mr Tani would inflict if he engaged in further criminal or other serious conduct as very serious. I say this because Mr Tani has become disinhibited by alcohol on many occasions now. If he were to engage in further drinking, I think there is a pronounced risk that the drinking would lead to acts of serious unprovoked violence, or threatened violence, as they did in relation to the station employee at Penrith and as they did in relation to his housemates, for example. Mr Tani has an established history of alcohol abuse.  If he were to reoffend I believe the consequences could be quite unpredictable and grave, and I say that precisely because alcohol is well known to have a disinhibiting effect. That is a very serious matter in my opinion.

30. So far as the likelihood of Mr Tani engaging in further criminal or other serious conduct is concerned, I judge the risk to be low. I turn now to explain my reasoning. Mr Tani gave evidence that he has completed a number of courses over the years.  These have included an in-house residential program and a number of AA meetings and the like.

31. These have not assisted him in the sense of protecting him from a relapse, however. I also note that Mr Tani gave evidence before me that largely sought to minimise the seriousness of his drinking problem and of the seriousness of his offences.  I do not doubt that his relationship with his ex-wife was far more aggressive than he maintained before me in evidence. I do not doubt also that he minimised the extent of his drinking in his evidence. I do not accept his evidence that his drinking was under control until 2009. Rather, I find that his drinking became continual soon after his arrival in Australia in 2007 and that it had become quite heavy at an early stage. He was caught on a number of occasions with an excess alcohol-blood level, for example.

32. Applicants before the Tribunal sometimes seek to minimise their misconduct in order to advance their prospects of success. As I have said frequently in the past, at one level that is understandable given the unpalatable consequences of deportation including the fracturing of familial and other relationships of importance to an applicant. Where attempts at minimisation occur, however, they cannot lead me to believe that an applicant has genuine remorse in respect of the offending.  That applies to Mr Tani. I should say that having heard him, I do not believe that he fully appreciates the harm his behaviour has caused to others. I do not believe, therefore, that he poses a low risk of reoffending because he has developed complete insight into his behaviour.

33. Nevertheless, as I have also said frequently in the past, the focus of the Direction in this regard is not on remorse as such but on future risk. 

34. In this connection, I do believe that there are a number of factors in Mr Tani’s circumstances that make his risk of reoffending much lower than it might otherwise have been.  First, I take into account the fact that the sentence that Mr Tani was required to serve in relation to the most recent offences was a strongly deterrent experience.  I appreciate that Mr Tani was a mature man when he was recently required to serve an extended period of time in jail, but it must have been a confronting experience nevertheless.

1. More importantly, the prospect of deportation has now been made very real for Mr Tani. He now knows the reality of imminent deportation from the confines of a detention centre to which he was compulsorily removed after leaving jail. Mr Tani understands, I believe,  that if he is successful in his application to the Tribunal, he is most unlikely to be spared deportation should be reoffend in the future.

2. In this regard, I note that Mr Tani’s genuine desire to re-establish meaningful contact with his three children is an important incentive for him to reform himself. I also note that if he is released, he will move into the home of his girlfriend, who is a mature Christian woman, who holds a good teaching position, and who appears to me to be a very stabilising feature in Mr Tani’s life. This person gave evidence on Mr Tani’s behalf which I accept.  I note that she is of a similar age and has been unhappily married before. She did not present to me as naïve or unduly idealistic in her contemplation of her prospective life with Mr Tani.  She wishes sincerely to assist him, and they have plans in due course to be married. She is aware of his problems and criminal offending. Mr Tani has, I believe, a genuine love for her.  It is clear from her evidence that she would not follow him to Papua New Guinea. He has a genuine incentive, therefore, to stay away from alcohol in order to maintain that relationship.

3. I believe both the deterrent effect of jail and immigration detention coupled with the positive incentives of Mr Tani’s desires to re-establish contact with his children and to advance his relationship with his girlfriend are all factors that in this particular case point to the risk of reoffending being low. I do not say the risk is non-existent of course. But I do believe that it is very fortunate for Mr Tani that he will be able to leave detention and move in immediately with a partner who will have a stabilising effect upon him and provide an appropriate living environment. It may be, of course, that Mr Tani will have to wait some time before he is able to secure contact with his children. Nevertheless I believe that he is genuinely determined to pursue that option and that also provides a very powerful incentive for him to stay away from alcohol.

4. I note here that I accept Mr Tani’s evidence that he has stayed away from alcohol while in jail and in detention and has not availed himself of the opportunity to take alcohol that was being offered illicitly. There is no suggestion that Mr Tani has ever taken illicit drugs. 

5. I would also note in this connection that both Mr Tani and his girlfriend are committed to Christian principles. He is, as I have said, of the Salvation Army faith, and she is Roman Catholic. In Mr Tani’s case, religion has not, of course, proved effective in the past as a deterrent against immoderate drinking; but I do believe that Mr Tani will find the support of his partner and a return to practising his Christianity with a like-minded partner a positive influence in his life. Again, however, I must acknowledge there is still a risk that he will relapse.

6. All in all, therefore, I have decided that the risk of Mr Tani reoffending is low because I believe that there is a low risk that he will return to alcohol consumption, which has lain at the root of his past offending. That said, I am conscious of the fact that Mr Tani has had many occasions in the past where he has been involved in offences and where he has tried unsuccessfully to stay away from alcohol. I must weigh very carefully whether or not I think that the factors to which I have referred will prove to be effective where other factors in the past (including courses and multiple sentences imposed by the courts (albeit non-custodial)) have been ineffective. This has not been an easy matter for me but I believe that the risk of the applicant abusing alcohol is low given both the deterrent factors and “protective” factors, if I may use that expression, to which I have referred.

7. I must take into account the best interests of minor children in Australia affected by my decision. In this regard I must have regard to the interests of the three children the applicant has with his former wife. The delegate considered that their interests would be served by Mr Tani remaining in Australia: see Ex R1, p19.  The older child is twelve at the time of my decision, the middle child ten, and the youngest child eight. I believe that it is in the interests of the children to have contact with their father provided of course that contact is not affected adversely in any way by alcohol.

8. I do take into account that at the present time the applicant’s ex-wife has a new partner and he fulfils a paternal role in relation to the children, and of course his ex-wife also performs a maternal role in relation to the children.  That diminishes somewhat the importance of the applicant remaining in Australia.   That said, I do believe that the children would benefit in the future from a positive relationship with their biological father and this is likely to be far more difficult to maintain on a one-on-one basis if the applicant is removed to Papua New Guinea.  This factor does favour the applicant in my opinion.

9. Of course it cannot be said that Mr Tani will necessarily be successful in achieving contact. I take into account the present Court orders that prevent him from having access to the children.  I accept Mr Tani’s evidence that he plans, when he is out of detention, to seek to have access through his lawyers when the court orders expire next year.  Nevertheless, at the present time, any access he might achieve through legal processes is speculative and I must take that into account in weighing up the interests of minor children.

10. I accept that the expectations of the Australian community are to be gauged by reference to the Direction itself and are not to be evaluated by me personally: see the full Federal Court decision in FYBR v. Minister for Home Affairs [2019] FCAFC 185. I think the expectations of the Australian community favour Mr Tani’s removal from Australia strongly as he has shown himself to be guilty of serious offences which are strongly antisocial and these have escalated over a long period of time.

11. The Direction requires me to weigh up other considerations. I accept that these are not primary considerations and that primary considerations should generally be given more weight. So far as these other factors are concerned, I believe that Mr Tani will lose meaningful personal contact with his children if he is removed.  That is a matter of importance to him that I should take into account.  I also have regard to his desire to maintain his relationship with his serious girlfriend and to her interest in maintaining that relationship. The evidence before me suggests that the relationship would end if Mr Tani were deported.

12. I accept that Mr Tani has not lived this entire life in Australia. In fact he arrived in 2007, which is only 13 years ago. I note also he began offending and indulging in serious and antisocial drinking from an early stage after his arrival. These matters count against him. I have no evidence in respect of the impact on victims of his offending and I do not take that factor into account one way or the other.

13. So far as the extent of impediments is concerned, I believe the applicant would face initial difficulties re-establishing himself in Papua New Guinea but I do not believe these would be long-term. He has good skills and has complete cultural familiarity. Accordingly, I do not believe I should attach any real weight to the extent of impediments Mr Tani would face were he removed to Papua New Guinea.

    Weighing the Considerations

14. Weighing the considerations has proved difficult. I am conscious of the strongly antisocial aspect of Mr Tani’s repeated offending, the cumulative effect of that offending, and of its frequency. I regard the most recent escalation of the offending into serious assaults against the railway employee and against his housemates as a very serious matter indeed.  There is no doubt that Mr Tani has had multiple appearances before Courts.  On any one of these occasions, he might have reflected more carefully about his behaviour and taken the necessary steps to improve it.  I accept that the Australian-community-expectations consideration is against him strongly.

15. Against this I must weigh the legitimate interests of the minor children to have contact with their father in the future if he maintains sobriety. This interest persists (albeit in a reduced way) notwithstanding its somewhat speculative nature at this point and notwithstanding the presence of other responsible parental figures (namely the applicant’s ex-wife and her new partner).  I do believe that the risk of reoffending in this case is low for the reasons I have given. I believe I also should attach weight to the desire of Mr Tani’s serious girlfriend to develop their relationship further into a marriage. I believe that is a strong interest on her part.  I accept her evidence that she could not realistically suppose a life for herself in Papua New Guinea. I take into account Mr Tani’s own personal interest in maintaining contact with his three children as a matter that is very important to him and his own interest in pursuing his relationship with his serious partner.

16. All in all, I have decided that I should set aside the decision under review in what is a very finely balanced decision. I would add that had it not been for the prospect of Mr Tani moving into his new partner’s stable home environment and their mutual desire to advance their relationship to marriage, I doubt I would have revoked the cancellation decision. It seems to me that in those circumstances, I would have had much less confidence in Mr Tani adhering to what he insisted before me was his firm resolution to abstain from alcohol. I believe that this resolution has a far greater prospect of success given the loving and stable home environment offered by his partner. I have already referred to the strong deterrent effects operative in this case. This has led me to conclude that Mr Tani does pose a low risk of reoffending. In all the circumstances, I believe that the low risk, the interests of the minor children and the other factors I have identified in Mr Tan’s favour (namely his partner’s interest and his own personal interests) has made this a case where the cancellation decision should be revoked. It has not been an easy decision to reach, I must say, because whilst there is a low risk, it is not the case that there is no risk.

17. Nevertheless balancing all the factors I have referred to, I have decided to set aside the decision under review and to substitute a decision that the visa cancellation be revoked.  I shall issue a formal decision accordingly.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

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Administrative Assistant Legal

Dated:  30 December 2020

Date of hearing:	11, 12 November, 13 November 2020 & 2 December 2020.
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr Adam Cunynghame of Sparke Helmore