Tera Euna v Minister for Immigration and Border Protection

Case [2016] AATA 301

Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301 (11 May 2016)

Division

GENERAL DIVISION

File Number(s)

2015/6294

Re

Tera Euna TERA EUNA

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal

Mrs J C Kelly, Senior Member
Date 11 May 2016
Place Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

Class TY Subclass 444 Special Category (Temporary) visa – criminal offences – cancellation of visa – Direction 65 – character test – protection of Australian community – best interests of minor children – whether risk of future harm to Australian community unacceptable – history of violent criminal conduct – significant risk of reoffending – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) s 499, 500, 501

SECONDARY MATERIALS

Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

11 May 2016

Introduction

  1. The applicant, Tera Euna TERA EUNA, seeks the review of the delegate’s decision dated 25 November 2015 made pursuant to s.501CA(4) of the Migration Act 1958 (the Act) not to revoke the mandatory visa cancellation decision made on 18 June 2015 pursuant to s.501(3A) of the Act.

  2. The 18 June 2015 decision cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa because the delegate was satisfied that the applicant did not pass the character test because of the operation of s.501(6)(a). The delegate found that the applicant did not pass the character test in s.501(6)(a) because he has a substantial criminal record (as defined by s.501(7)(c)). Section 501(3A) provides that the Minister must cancel a visa that has been granted to a person if they have a substantial criminal record on the basis of s.501(7)(a), (b), or (c), and if the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. The applicant was in prison when the decision was made to cancel his visa.

  3. Section 501(7)(c) provides that a person has a substantial criminal record if they have  been sentenced to a term of imprisonment of 12 months or more. 

  4. This jurisdiction of this Tribunal to review the decision not to revoke the mandatory cancellation decision is found in s.500(1)(ba) of the Act.

    Background

  5. The applicant was born in 1968. He is a citizen of New Zealand and first arrived in Australia on 21 July 1991, aged 23. He has left Australia on four occasions for brief periods.  He arrived most recently on 12 April 2012.

  6. In 2005 the applicant suffered a workplace injury. He has been receiving the Disability Support Pension and is not employed full-time but does casual work that suits his physical limitations.

  7. The visa cancellation decision arose from the applicant’s conviction in Bega Local Court on 17 February 2015 for two offences: Common Assault and Armed With Intent to…

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Details
AGLC
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Case
[2016] AATA 301
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision not to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The cancellation was triggered by the applicant's convictions in Bega Local Court on 17 February 2015 for Common Assault and Armed With Intent to Commit Indictable Offence, for which he received concurrent sentences of 12 months imprisonment. The applicant, a New Zealand citizen who had resided in Australia since 1991, sought revocation of the cancellation, arguing he passed the character test or that other reasons warranted revocation. The Tribunal was constituted by Senior Member Mrs J C Kelly.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined in section 501 of the Migration Act 1958 (Cth), and if not, whether there was another reason why the visa cancellation decision should be revoked. This involved considering the applicant's criminal history, including the 2015 convictions and numerous prior offences dating back to 1992, and assessing the risk of future harm to the Australian community. The Tribunal also considered the best interests of minor children, although this was not a central focus of the applicant's case or the Tribunal's findings.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record as defined by section 501(7)(c) of the Act. This conclusion was based on the applicant's convictions for Common Assault and Armed With Intent to Commit Indictable Offence in 2015, as well as a lengthy history of other offences including common assault, breach of bail, wilful damage, and driving offences. The Tribunal rejected the applicant's claims that his sentences were reduced on appeal, finding that while his non-parole period was adjusted, his sentences remained unchanged. Furthermore, the Tribunal found the applicant's evidence regarding his use of an alias to be contradictory and not consistent with police records, reinforcing the assessment of his character. The Tribunal was not satisfied that there was another reason to revoke the cancellation decision, concluding that the protection of the Australian community from criminal conduct was paramount.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This jurisdiction of this Tribunal to review the decision not to revoke the mandatory cancellation decision is found in s.500(1)(ba) of the Act.Background The applicant was born in 1968. He is a citizen of New Zealand and first arrived in Australia on 21 July 1991, aged 23. He has left Australia on four occasions for brief periods. He arrived most recently on 12 April 2012. In 2005 the applicant suffered a workplace injury. He has been receiving the Disability Support Pension and is not employed full-time but does casual work that suits his physical limitations. The visa cancellation decision arose from the applicant’s conviction in Bega Local Court on 17 February 2015 for two offences: Common Assault and Armed With Intent to Commit Indictable Offence. He was sentenced to imprisonment for 12 months for each charge to be served concurrently commencing on 23 December 2014. He was released from prison on 22 June 2015. Decision not to revoke the cancellation decision When the Minister makes a decision to cancel a person’s visa under s.501(3A), the person must be given a written notice setting out that decision, particulars of relevant information as defined, and be invited to make representations within the period and manner ascertained according to the regulations (s.501CA(3)). Section 501CA(4) provides that:The Minister may revoke the original decision if:(a) the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked. The applicant made representations and provided several references in support of his representations but the delegate decided not to revoke the decision because the delegate found that the applicant did not pass the character test and the delegate was not satisfied that there was another reason why the original decision should be revoked. Evidence The documentary evidence before the Tribunal included the T documents, which includes the applicant’s representations made in accordance with the invitation, two additional references supporting the applicant, two documents relating to the incorporation of a company related to two of the referees, a print-out of the police record of “events involving” the applicant, copies of two reports of incidents at Villawood detention centre, and a copy of the NSW Department of Corrective Services Case Note Report relating to the applicant. The Tribunal also heard oral evidence from the applicant, one of his sisters, his niece, his former landlady, two female friends, a former neighbour, and the mother of his son. Does the applicant pass the character test? At the hearing, the applicant claimed that his sentence relating to his 2015 conviction had been reduced on appeal from nine months to five months and he was released three days later. The NSW Department of Corrective Services Conviction Sentences and Appeal document dated 17 June 2015 (T19 page 211) shows that he did appeal and there was a video hearing, as he claimed, on 17 June 2015. He was released on 22 June 2015. It also shows that his non-parole period was reduced on appeal to six months. Although not clear from that document, page 27 of Attachment 1 to the respondent’s Statement of Facts and Contentions shows that originally the applicant’s non-parole period was nine months, which is consistent with the applicant’s evidence that his original release date was 22 September 2015. His evidence that he went to gaol in October 2014, left gaol on 9 December 2014 and was on bail until 17 February 2015 and then went back to gaol is generally consistent with serving six months gaol in total. The applicant said that he has never served a 12 month gaol term. That is correct but that is not the statutory criterion in issue. (See s.501(7)(c) referred to above)

Evidence

Evidence Before The Court

The applicant made representations and provided several references in support of his representations but the delegate decided not to revoke the decision because the delegate found that the applicant did not pass the character test and the delegate was not satisfied that there was another reason why the original decision should be revoked. Evidence The documentary evidence before the Tribunal included the T documents, which includes the applicant’s representations made in accordance with the invitation, two additional references supporting the applicant, two documents relating to the incorporation of a company related to two of the referees, a print-out of the police record of “events involving” the applicant, copies of two reports of incidents at Villawood detention centre, and a copy of the NSW Department of Corrective Services Case Note Report relating to the applicant. The Tribunal also heard oral evidence from the applicant, one of his sisters, his niece, his former landlady, two female friends, a former neighbour, and the mother of his son. Does the applicant pass the character test? At the hearing, the applicant claimed that his sentence relating to his 2015 conviction had been reduced on appeal from nine months to five months and he was released three days later. The NSW Department of Corrective Services Conviction Sentences and Appeal document dated 17 June 2015 (T19 page 211) shows that he did appeal and there was a video hearing, as he claimed, on 17 June 2015. He was released on 22 June 2015. It also shows that his non-parole period was reduced on appeal to six months. Although not clear from that document, page 27 of Attachment 1 to the respondent’s Statement of Facts and Contentions shows that originally the applicant’s non-parole period was nine months, which is consistent with the applicant’s evidence that his original release date was 22 September 2015. His evidence that he went to gaol in October 2014, left gaol on 9 December 2014 and was on bail until 17 February 2015 and then went back to gaol is generally consistent with serving six months gaol in total. The applicant said that he has never served a 12 month gaol term. That is correct but that is not the statutory criterion in issue. (See s.501(7)(c) referred to above) Contrary to the applicant’s claim, while his non-parole period was reduced on appeal, his sentences were unchanged. It is relevant to those findings that the applicant has an alias. Police records for the alias show several entries. I have taken into account his evidence about that matter, but do not accept it because it was contradictory, evasive and not consistent with the police records in Attachment 1. For example, he claimed that he only used the alias in 1992, and that the photograph of him contained in police records for the alias, clearly marked as having been taken in 2008, was taken in 1992. I find that the applicant was sentenced in Bega Local Court on 17 February 2015 to 12 months’ imprisonment for each of the two convictions. The sentences were not reduced on appeal. He has a substantial criminal record as defined in s.501(7)(c) of the Act. He therefore does not pass the character test as defined in s.501(6)(a) of the Act.

Decision

Reasons for decision

The visa cancellation decision arose from the applicant’s conviction in Bega Local Court on 17 February 2015 for two offences: Common Assault and Armed With Intent to Commit Indictable Offence. He was sentenced to imprisonment for 12 months for each charge to be served concurrently commencing on 23 December 2014. He was released from prison on 22 June 2015. Decision not to revoke the cancellation decision When the Minister makes a decision to cancel a person’s visa under s.501(3A), the person must be given a written notice setting out that decision, particulars of relevant information as defined, and be invited to make representations within the period and manner ascertained according to the regulations (s.501CA(3)). Section 501CA(4) provides that:The Minister may revoke the original decision if:(a) the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked. The applicant made representations and provided several references in support of his representations but the delegate decided not to revoke the decision because the delegate found that the applicant did not pass the character test and the delegate was not satisfied that there was another reason why the original decision should be revoked. Evidence The documentary evidence before the Tribunal included the T documents, which includes the applicant’s representations made in accordance with the invitation, two additional references supporting the applicant, two documents relating to the incorporation of a company related to two of the referees, a print-out of the police record of “events involving” the applicant, copies of two reports of incidents at Villawood detention centre, and a copy of the NSW Department of Corrective Services Case Note Report relating to the applicant. The Tribunal also heard oral evidence from the applicant, one of his sisters, his niece, his former landlady, two female friends, a former neighbour, and the mother of his son. Does the applicant pass the character test? At the hearing, the applicant claimed that his sentence relating to his 2015 conviction had been reduced on appeal from nine months to five months and he was released three days later. The NSW Department of Corrective Services Conviction Sentences and Appeal document dated 17 June 2015 (T19 page 211) shows that he did appeal and there was a video hearing, as he claimed, on 17 June 2015. He was released on 22 June 2015. It also shows that his non-parole period was reduced on appeal to six months. Although not clear from that document, page 27 of Attachment 1 to the respondent’s Statement of Facts and Contentions shows that originally the applicant’s non-parole period was nine months, which is consistent with the applicant’s evidence that his original release date was 22 September 2015. His evidence that he went to gaol in October 2014, left gaol on 9 December 2014 and was on bail until 17 February 2015 and then went back to gaol is generally consistent with serving six months gaol in total. The applicant said that he has never served a 12 month gaol term. That is correct but that is not the statutory criterion in issue. (See s.501(7)(c) referred to above)

Ratio Decidendi

Legal Principle Established

At paragraph 14, the Direction provides that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation of a visa “where relevant” and specifies some considerations without limiting the considerations that may be taken into account.Primary consideration 1 – the protection of the Australian community from criminal or other serious conduct In addition to the 2015 convictions, the applicant has the following criminal record in Australia:Narooma 8 March 2012 Common Assault Convicted.Local Court Fined $1,000Tweed Heads 28 May 2007 Fail to appear in On each charge:Local Court Accordance with Bail Convicted. Undertaking (2 charges) Released on Bond for 18 monthsCommon Assault Assault Occasioning Actual Bodily HarmTweed Heads 07 February 2006 Armed With Intent to On each charge: Local Court To Commit Indictable Imprisonment for 12Offence months. Sentencesuspended onentering Bond for 12 months.Contravene ApprehendedViolence OrderCultivate Prohibited Plant Convicted.Fined $2,000 Brisbane 07 March 2000 Common assault Convicted. Magistrates Fined $200CourtWilful damage Convicted.Fined $200.Pay restitution$504.75Maryborough 05 August 1994 Breach Bail Act Convicted. No Magistrates (Contempt) further penaltyCourt imposedBehave in an indecent On all charges:Manner Without conviction.Released onAssault Police entering recognizance(2 charges) self $100 to be of good behaviourObstruct Police for 3 months.Maryborough 10 June 1994 Breach Bail Undertaking Without MagistratesCourt conviction.Fined $50. FineOption order toPerform 10 hoursCommunity service.Brisbane 13 October 1993 Insulting words Convicted.Magistrates Fined $30.CourtByron Bay 05 Aug 1993 Drive with Low Range Convicted. Local Court of Prescribed Concentration Fined $600.of Alcohol Licence disqualifiedfor 3 months.Unregistered driver On each charge: Uninsured driver Convicted.Fined $300Plates Calculated On each charge:To deceive Convicted.Fined $200Unlicensed .Brisbane 11 May 1993 Assault Occasioning Without conviction.District Bodily Harm Fined $800 Court Wilful and unlawful Without conviction. Damage to Property Fined $150.Pay compensation$585.80. Inala 16 February 1993 Possession of Thing used Convicted.Magistrates in Connection with Smoking Fined $100Dangerous DrugBrisbane 07 Aug 1992 Assault Police On each Magistrates (2 charges) charge: NoCourt further penalty Resist Police imposed. The applicant said that he does not have an extensive criminal record and will never reoffend, after the hearing he has gone through. He claimed that he “probably lost the plot” the last time because he should not have given money to the people who he was convicted of assaulting. The applicant said that he goes out of his way to help people. During cross-examination, the applicant gave the following evidence about the above offences. The applicant remembers his first criminal offence in 1992 “real well”. He won that case. He had been in Australia for one year. He denied that the offence was for assaulting and resisting police. He claimed that he was arrested for drunk and disorderly. He had just got out of hospital and he proved that in court. He accepted that the charges were proved.