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

[2021] AATA 142

Tereva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 142 (12 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6718

Re:Rex Tereva

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:12 January 2021

Date of written reasons:        9 February 2021

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of 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

Mandatory cancellation of visa under s501 of Migration Act 1958 – Applicant sentenced to imprisonment for driving while disqualified and while having an excess blood alcohol level – Primary considerations – Past criminal record - Risk of reoffending very low – Unusual circumstances of most recent offending – Other considerations – Interest of elderly parents in maintaining relationship with applicant - Decision under review set aside and decision substituted that visa cancellation be revoked

Legislation

Migration Act 1958 (Cth)

Cases

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

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

FYBR v Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (issued under s 499 of the Migration Act 1958)

REASONS FOR DECISION

Senior Member Dr N A Manetta

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 Rex Tereva seeking a review of a decision of the respondent’s delegate dated 20 October 2020. In this decision, the delegate refused to revoke the mandatory cancellation of Mr Tereva’s visa. The cancellation had earlier occurred under section 501 of the Migration Act 1958 (“the Act”).  Mr Tereva had been sentenced to a term of imprisonment of at least 12 months and had been required by the Court to serve part of this sentence on a full-time basis in jail. For this reason, his visa was mandatorily cancelled and, according to the relevant statutory provisions, properly so.

   TRIBUNAL’S FUNCTION

3. Mr Tereva requested revocation of the cancellation decision, but he was unsuccessful.  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 applications of this kind, 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 an 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 Sahay represented Mr Tereva; Mr Kyranis, 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 Mr Tereva’s visa be revoked. I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS AND REASONS

5. Mr Tereva was born on 12 September 1963. He was, accordingly, 57 years of age at the time of the hearing before me. He gave evidence about his background which I largely accept. Mr Tereva was 16 years of age when he came to Australia. He is a New Zealander. Before his incarceration, he had been living with his elderly parents.  He is the only member of that household who can help out with their various needs.

6. He has five siblings, none of whom lives with the parents. One sibling lives in America and another on the north coast. There are three siblings living in the Brisbane area, where the parents live. These are Mr Tereva’s sisters, but Mr Tereva said in his evidence, and I accept, that they have their own families and commitments.

7. It is clear to me from the oral evidence Mr Tereva’s father gave that he is somewhat confused and he would need assistance in attending to day-to-day responsibilities. I do not infer that Mr Tereva’s mother, who was not called to give evidence and was not required to attend for cross-examination, is able to manage the household without her son’s help. I accept the evidence contained in the joint statutory declaration made by Mr Tereva’s parents (see Ex A1, Annexure D) that Mr Tereva provides them with much needed assistance in respect of tasks that are now beyond their capabilities. I also accept the statement in their declaration that they rely on Mr Tereva as their other children “have their own partners and lives and live apart from us” and “otherwise are not in a position provide the level of support that [Mr Tereva] does”.

8. Mr Tereva does not have a partner.  He does not have any children who are minors. Mr Tereva has worked on a casual basis for the last eight to ten years with an asbestos-removal and demolition company. A reference from a responsible officer within that company was tendered in support of Mr Tereva’s application to this Tribunal: see Ex A1, Annexure E.

   Criminal offending

9. I now turn to Mr Tereva’s criminal offending. I deal first with Mr Tereva’s offending that does not involve driving offences.  He has a lengthy criminal history: see Ex R1, pp 20ff.  Mr Tereva’s first conviction in Australia dates back to 1981, when he had just attained his majority. I note that this conviction occurred very shortly after his arrival in Australia.  It is sufficient for me to refer in general terms to the other offences of which Mr Tereva was convicted over the course of the early 1980s.  He was convicted of offences involving stealing, possession of suspected stolen property, unlawful assault, and breaking and entering a dwelling with intent. These offences were antisocial and resulted in convictions. No sentence of imprisonment was imposed although Mr Tereva was placed on probation for 12 months and two years respectively in relation to some of the offending. His last sentence in the 1980s was imposed in January 1983.

10. Thereafter, Mr Tereva has no criminal offences recorded against his name until the 1990s.  From 1990 to 1995, there were a number of dishonesty offences. One of these led to a term of imprisonment of six months. In 1993 Mr Tereva was convicted of unlawful use of a motor vehicle, wilful and unlawful damage to property and breaching bail. These resulted in convictions but no jail sentence was imposed. In 1995, he was also convicted of mistreating an animal although no conviction was recorded on that occasion.

11. In 1997 Mr Tereva appeared on four separate occasions before the Magistrates Court in Queensland charged with a variety of offences. These resulted in convictions and fines. In 1998 more serious charges were found proven against Mr Tereva. He was charged with a number of dishonesty offences and sentenced to imprisonment for 12 months. In 1999 he was once again found guilty of a dishonesty offence involving the passing of a valueless cheque and he was sentenced to six months’ imprisonment.

12. In 2004 Mr Tereva appeared a number of times before the Courts in relation to breaches of domestic and family-violence protection orders. There is also an offence involving dishonesty at this time; namely, the dishonest application of another’s property and stealing. In 2009 and 2010 Mr Tereva was convicted of failing to appear in accordance with an undertaking and was sentenced to short periods in jail.  In 2016, there is a further minor offence recorded in relation to a traffic offence dating from 5 October 2015.  A conviction was recorded but no penalty was imposed.

13. Apart from the 2016 offence, Mr Tereva’s offending (apart from his driving offences to which I shall come shortly) is now some 10 years old.  However that may be, this offending does represent a considerable history of antisocial behaviour. Overall there was an established tendency to reject the law.  And, of course, I have not yet considered the offences arising from Mr Tereva’s unlawful driving, to which I now turn.

14. Mr Tereva has never held a full driving licence. Indeed, as I understood his evidence to me, he has never held anything other than a learner’s permit.

15. Mr Tereva’s driving record is abysmal, to put the matter plainly.  The criminal offences that Mr Tereva has committed in this regard are set out over an extensive number of pages beginning at page 132 of Exhibit R1.

16. I do not need to traverse the lengthy criminal record Mr Tereva has accumulated in this regard. It is sufficient to point out that on a number of occasions Mr Tereva received jail sentences for driving while being disqualified from driving. Most notably in 2015 Mr Tereva was sentenced, as I understand matters, to eight months’ jail: four months for driving a motor vehicle while having an excess concentration of alcohol in his blood and four months for driving while unlicensed. This was followed later that year by the imposition of a jail term of 12 months for driving while disqualified.

17. I note that on this occasion Mr Tereva’s visa was cancelled. In the event, the cancellation was revoked by the Minister’s delegate in his or her discretion after Mr Tereva made representations in a statutory declaration that he would never behave in this way again: see Ex R1, at pp 60-61.  After that date, no further driving offences are recorded against Mr Tereva’s name until 2020.

18. In this year, Mr Tereva was convicted again of driving a motor vehicle while disqualified and while having an excess blood alcohol level. It is this offending that has led to the most recent cancellation of his visa.

19. The circumstances of the offending are as follows. In this regard I should note that I accept the evidence Mr Tereva gave, corroborated, as it was, by the evidence of Ms Donna Marchant. I also note that Mr Kyranis did not challenge this version of events actively in cross-examination.  The circumstances under which Mr Tereva came to find himself driving were adverted to and apparently accepted by the sentencing Court in the course of its sentencing remarks: see Ex R1, at p.30.

20. Mr Tereva and his next door neighbour, Ms Marchant, attended a social gathering in December 2019.  Ms Marchant drove them to the gathering in her car.  Mr Tereva drank alcohol at the gathering, but in circumstances where he did not expect to have to have to drive home: Ms Marchant was expected to drive them home again in her car. Ms Marchant did in fact begin the journey home but due to her erratic driving (brought on apparently by a diabetic episode) she was persuaded to stop driving by Mr Tereva. Mr Tereva then took over the driving and continued the journey, which I accept on the evidence before me was expected to be some 20 minutes by car. Mr Tereva drove through an intersection, ignoring a stop sign, and was pulled over by the police.

21. The police report records that Mr Tereva was slurring his words and was stumbling on the footpath: Ex R2, at p.97. Mr Tereva’s evidence to me and to the sentencing Magistrate was that he felt he had to take over the driving given Ms Marchant’s poor condition. Ms Marchant’s statutory declaration (which was before me as Annexure B to Exhibit A1) indicated that she had become dizzy and ”lighted” (which I read as a misprint for “lightheaded”) due to her Type II diabetes.  She says that she acceded to Mr Tereva’s request that she cease driving and that he should drive them home instead.

22. It is clear from the police report that at the time Mr Tereva made the suggestion to Ms Marchant that he should drive them home, he was substantially affected by alcohol and his decision-making capacity was, accordingly, impaired.  In the event, Mr Tereva was found guilty of a number of offences (driving through a stop sign, driving while disqualified, and driving with an excess blood alcohol level of 0.134%). He received sentences that had to be served in part in jail.  The sentences marked the severity of his offending in this regard.  I shall return to the offending in due course.

    RE-EXERCISING THE DISCRETION UNDER DIRECTION 79

23. The delegate was required to apply Direction 79 issued under s 499 of the Act. I must also apply the 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 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. Turning now to apply the direction,  I must have regard to the need to protect the community from criminal or other serious conduct.  I have had regard to the principle in para 13.1 (1).   I need not set it out verbatim in these reasons. 

25. I must have regard to the nature and seriousness of Mr Tereva’s conduct and the risk to the Australian community should Mr Tereva engage in further offences or other serious conduct.  I must have regard to a number of factors set out in paragraphs (a) to (i) in paragraph 13.1.1(1). I accept there have been a number of domestic violence and family protection orders that have been breached by Mr Tereva over the years, with the last recorded offence being in 2004, some sixteen years ago. There is also an assault dating back to 1982 (which is of course some 38 years ago). In this regard I take into account the principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed. I must have regard to the sentences imposed by the courts and I do so. 

26. Where offending has led to the imposition of a sentence of imprisonment it must be taken to be serious.  In particular, I note that recently Mr Tereva has received significant sentences in relation to driving offences.  The sentences reflect the strongly antisocial nature of Mr Tereva’s misconduct on the road.

27. It need hardly be said that an unqualified driver should not be driving a car otherwise than permitted by law and should not be driving it after consuming alcohol.  Mr Tereva has never qualified as a driver: he has never held a licence apart from a learner’s permit. He has shown considerable indifference  ̶  or defiance  ̶  towards the legal regime regulating road behaviour.

28. I do not underestimate the significance of this offending. Traffic accidents result in deaths and long-term injuries. It is no exaggeration to say an injury can have a profound impact on a person’s life and the lives of that person’s family members.  The impact can be prolonged or even permanent.  I note in this regard the Tribunal’s remarks in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43], to which I was referred by Mr Kyranis (see para [38] of the respondent’s Statement of Facts, Issues and Contentions).

29. I must have regard to the cumulative effect of repeated offending and I do so.  Mr Tereva’s criminal record taken as a whole is very serious.  I must have regard to the frequency of Tereva’s offending and again I do so.  Mr Tereva has offended repeatedly over the course of his life in Australia. I would not identify any trend of increasing seriousness as such; but the most recent offences have resulted in jail terms because they represent repeated instances of the same type of misconduct. Mr Tereva’s persistent defiance of the law over the course of his life does represent a trend of increasing seriousness, and I take that into account.

30. I am required to take into account the fact that Mr Tereva has reoffended since being formally warned or made aware about the consequences of further offending. In this regard, I note that Mr Tereva has already been spared removal from Australia once before, having persuaded the Minister’s delegate to revoke the cancellation of his visa and after promising not to offend again. I take this principle into account.

31. So far as risk to the Australian community is concerned I must take into account “cumulatively” the nature of the harm to the Australian community should Mr Tereva engage in further or other serious conduct and the likelihood of his engaging in that further could conduct.  So far as the first factor is concerned, I think I should concentrate on the crimes that, on the evidence before me, are most likely to be committed: these involve unlawful driving and driving with an excess blood alcohol level.  If Mr Tereva were to reoffend in this way, I believe the potential consequences to a member of the Australian community could be extremely serious, even devastating.   As I have mentioned, Mr Tereva is not a qualified driver.  Were he to drive while inebriated, he would expose the community to a very high risk of serious injury.

32. I must also have regard to the likelihood of his engaging in this conduct and in this regard I believe the risk is very low.  I believe it is important to distinguish between two situations. The first situation is one where Mr Tereva had fully intended to drive home contrary to legal requirements and after consuming a large amount of alcohol. This situation would have been entirely reprehensible.  It would have been entirely unacceptable for Mr Tereva to drive a car and even more unacceptable to do so after consuming any alcohol whatsoever.

1. The second situation is the one that in fact arose in this case. Mr Tereva was not acting contrary to any law in drinking at a social gathering. He had arrived in someone else’s car and fully expected to be driven home by the driver. On the evidence before me, the driver of the car was no longer able to proceed with the journey due to a medical condition. The police report shows that Mr Tereva was affected by alcohol: he was slurring his words and was stumbling. These observations by the police suggest quite some degree of impairment. I note that Ms Marchant, for whatever reason, acceded to Mr Tereva’s request to drive, and so he did not have the benefit of her prudent refusal.  It is clear that Mr Tereva made a very poor choice, but it cannot be said that it was a choice made without impaired judgment. He had not expected to have to drive home. It is well understood that alcohol can affect judgment markedly. I note that since the last cancellation of Mr Tereva’s visa in 2016, he has had no driving offences or indeed other offences recorded against his name.  I think it is fair to conclude that Mr Tereva had well and truly learned his lesson on the last occasion and had proved himself over some years to be determined to preserve his right to remain in Australia by adhering to Australia’s laws. While jail terms may not have deterred Mr Tereva in the past from unlawful behaviour, it is clear that the prospect of deportation has operated as a powerful deterrent. Importantly, there are a number of years of appropriate community behaviour to which Mr Tereva can point.

2. I think the circumstances that Mr Tereva faced on the return journey home from the social gathering were highly unusual. Whilst he was jailed for the offences he committed on that day, I should take into account the fact that Mr Tereva’s judgment leading up to the offending was necessarily impaired by his prior consumption of alcohol in circumstances where he did not anticipate having to drive home and where Ms Marchant did not reject his offer that he take over the driving.  His moral culpability in this circumstance has a different complexion in my opinion than the usual case of driving whilst inebriated. 

3. So far as risk is concerned, I do not believe the offences committed in December 2019 reflect a deliberate relapse by Mr Tereva into poor behaviour marking him out as a continuing risk to the Australian community. In the circumstances of this unusual case, I believe the likelihood of Mr Tereva re-engaging in criminal or other serious conduct is very low.

4. As for as the likelihood that Mr Tereva will commit again any of the other types of offences he has committed in the past, I would note that a considerable number of years have elapsed, some 10 years now in fact, since the last offence in 2010 (leaving aside one minor offence).   I think the risk of Mr Tereva engaging in other criminal offending is also very low.  I believe he understands full well the impact on his residency status in Australia of further offending.

5. I must take into account the interests of minor children. No such interests arise in this case.

6. I  must weigh up as a primary consideration the expectations of the Australian community.  These are to be evaluated 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 this factor strongly favours Mr Tereva’s removal from Australia as he has repeatedly engaged in offending which has been strongly antisocial. I accept that Mr Tereva’s offending on the most recent occasion resulted from impaired judgment due to alcohol consumption where it cannot be said that he ought not to have been drinking. Nevertheless, the community-expectations factor counts against Mr Tereva in my opinion. Overall, his criminal record is very poor.

7. I must take into account other considerations. I acknowledge that these other considerations do not “generally” outweigh the primary considerations.  Amongst the five factors that I must take into account, the most important from Mr Tereva’s point of view is the strength, nature and duration of his ties. Here I accord some significant weight to the interest Mr Tereva’s parents have in maintaining a close relationship with their son.   Mr Tereva supports his parents and they depend upon him. On the evidence before me, it would be difficult for other family members to re-arrange their lives to meet the parents’ continuing needs, but I do not say that it would be impossible for them to do so. Ms Marchant would provide some additional assistance as a family friend, too.  I accept, however, that her ability to fill the void, so to speak, would be limited given her own commitments.  Beyond this, the parents do have an interest, in my opinion, in maintaining their relationship with their son in Australia. I believe Mr Tereva’s interest in maintaining that relationship, which is the closest familial relationship he has, is also an important factor to which I should have regard.

8. I accept that there would be some impediments to Mr Tereva returning to New Zealand, but I believe these would be transient only. Mr Tereva is largely familiar with New Zealand culture. There would be no language barriers to overcome. I accept, however, that Mr Tereva has not lived in New Zealand for some decades and that there would be a re-adjustment phase.

   WEIGHING OF DISCRETION

9. In this unusual case, the circumstances of the most recent offending assume particular importance in the weighing of my discretion.  Mr Tereva has, no doubt, a very long criminal record but I have concluded that the risk of his reoffending is very low, and I point again to the years since his visa was last cancelled where he had not engaged in any criminal conduct.  The most recent criminal conduct in which he has engaged occurred in very unusual circumstances. As I have indicated, I believe I should take into account the circumstances of that offending as a factor which properly informs my evaluation of the likelihood of his reoffending.   The lack of moral turpitude in Mr Tereva’s most recent offending is a relevant factor in my opinion. When I combine that with the difficulties that could be caused to Mr Tereva’s elderly parents were he to depart and with his own interest in living within an established family unit, I believe this is a case where the discretion to revoke cancellation ought to be exercised. 

10. I wish to make very clear that if Mr Tereva had driven himself to the social gathering in December 2019, consumed alcohol, and then begun the journey home, I would have viewed his behaviour in a very different light, and I would most probably have affirmed the decision under review.  As I have said, however, that is not this case.  There was no decision ever taken by Mr Tereva to drive except the decision he took in circumstances he did not anticipate, by which time his judgment had been substantially impaired by alcohol. In that regard, I note that the consumption of alcohol features frequently at Australian social gatherings and that there was nothing legally wrong or morally reprehensible in Mr Tereva’s consumption of alcohol at a social gathering where he did not intend to drive himself home.

    FORMAL DECISION

11. In the circumstances, I have decided to set aside the decision under review and substitute a decision that the cancellation of Mr Tereva’s visa be revoked.

44.     I certify that the preceding forty-three  (43) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

..........[Sgnd]........................
Administrative Assistant Legal

Dated: 9 February 2021

Date of hearing:	21, 22 December 2020
Advocate for the Applicant:	Rodney Sahay of Stephens and Tozer Lawyers
Advocate for the Respondent:	Jake Kyranis of Sparke Helmore Lawyers