TEVITA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 460
•30 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 460
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1416
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERTS TEVITA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Honourable Dr B H McPherson CBE, Deputy President and
Dr P McDermott RFD, Senior MemberDate30 June 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Cancellation of TY Subclass 444 visa on character grounds – Applicant New Zealand citizen – Protection of Australian community – Seriousness of criminal conduct – Risk of re-offending – Length of time applicant ordinarily resident in Australia before engaging in criminal activity – Family ties – Applicant failed character test – Circumstances weigh in favour of exercise of discretion to cancel visa – Decision under review affirmed
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
30 June 2011 Honourable Dr B H McPherson CBE, Deputy President
Dr P McDermott RFD, Senior MemberINTRODUCTION
1. Since 2000 Roberts Tevita (the applicant), a citizen of New Zealand, has resided in Australia. On 25 March 2011 a delegate of the respondent found that the applicant did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his Class TY Subclass 444 Special Category (Temporary) visa (the visa). He now seeks review of that decision by this Tribunal.
LEGISLATION
Character test
2. Under s 501(2) of the Migration Act 1958 (Cth) (the Act) the Minister may cancel a visa granted to a person if “the Minister reasonably suspects that the person does not pass the character test”[1] and “the person does not satisfy the Minister that the person passes the character test”.[2]
[1] Migration Act 1958 (Cth) s 501(2)(a).
[2] Migration Act 1958 (Cth) s 501(2)(b).
3. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
4. Section 501(7)(c) provides that a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Direction
5. Under s 499(1) of the Act the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.[3]
[3] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
6. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (“Direction 41”). Direction 41 commenced operation on 15 June 2009. This Direction applies to decision-makers exercising powers under s 501 of the Act to cancel a visa of a person who does not satisfy the Minister that the person passes the character test.[4]
[4] Direction [no.41] – Visa Refusal and Cancellation under s 501, 4(1).
7. Paragraph 9 of Direction 41 requires decision-makers to take into account what are referred to as the “primary considerations” in every case. The four primary considerations are set out in paragraph 10(1) of Direction 41:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
8. Paragraph 11 of Direction 41 also sets out “other considerations” which must be taken into account. These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education, and whether the person has been formally advised previously of the deportation or character provisions of the Act. Under Paragraph 11(2) of Direction 41 it is provided that that “other considerations”, where relevant, must be taken into account but, generally, should be given less weight than that given to “primary considerations”.
ISSUES
9. The issues that we have to consider are:
(i) Does the applicant pass the character test; and
(ii) If not, should the discretion to cancel the visa be exercised?
CHARACTER TEST
10. The criminal history of the applicant was admitted into evidence.[5] Between 2002 and 2010 the applicant has been convicted of a number of offences.
[5] Exhibit 2.
11. For the purpose of considering the application of s 501 of the Act, it is important to mention that the criminal history of the applicant includes the following convictions:
(i)In 2003 the applicant was convicted before the District Court of Queensland at Brisbane and sentenced to a term of imprisonment of 3 years for the offence of robbery with actual violence whilst armed and in company;
(ii)In 2004 the applicant was convicted before the Supreme Court of Queensland and sentenced to a term of imprisonment of 8 years for the offence of unlawfully causing grievous bodily harm to an individual and that he intended to cause that harm;
(iii)In 2004 the applicant was convicted before the District Court of Queensland at Brisbane and sentenced to a term of imprisonment of 6 months for the offences of the unlawful use of a motor vehicle and stealing;
(iv)In 2010 the applicant was convicted before the Magistrates Court of an offence of fraud, being the offence of dishonestly obtaining property from another, as well as the offence receiving tainted property, and was sentenced to 2 months imprisonment for each offence; and
(v)In 2010 the applicant was convicted before the Magistrates Court of the offences of wilful damage to property and an attempt to enter a dwelling with intent by break, and was sentenced to 4 months imprisonment for each offence.
12. There are also a number of other offences which are recorded in the criminal history such as a breach of bail.
13. We are satisfied that the applicant does not pass the character test by having a “substantial criminal record” by being sentenced to a term of imprisonment of 12 months or more.[6] There was no issue before us that the applicant does not pass the character test.
[6] Migration Act 1958 (Cth) s 501(7)(c).
DISCRETION
14. Having found that the applicant does not pass the character test, we are now required under Paragraph 8 of Direction 41 to consider whether to exercise the discretion to cancel the visa. This requires us to consider the primary considerations as well as the other considerations which we have already mentioned.
THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT
15. Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk of harm to the community include:
(a)the seriousness and the nature of the relevant conduct; and
(b)the risk that the conduct may be repeated.
Seriousness and nature of the conduct
16. Paragraph 10.1.1(1) of Direction 41 specifies that “crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”, and that “crimes involving violence … are especially abhorrent to the whole community”.
17. Paragraph 10.1.1(2) of Direction 41 gives examples of offences that are considered serious. That paragraph states that the offences of grievous bodily harm[7] and robbery[8] are considered to be serious. The applicant has therefore committed offences which are categorised in the Direction as serious.
[7] Direction [no.41] – Visa Refusal and Cancellation under s 501, 10.1.1(2)(d).
[8] Direction [no.41] – Visa Refusal and Cancellation under s 501, 10.1.1(2)(e).
18. Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors. These include the sentence imposed for the offences, including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports, and any relevant factors the person provides as mitigating factors.
19. We proceed to consider the first serious offence committed by the applicant. In 2003 the applicant appeared before the District Court when he was convicted of the offence of armed robbery in company that was committed in the Brisbane Botanical Gardens around midnight on one evening in June 2002. The applicant was aged 17 years at the time of the offence. The applicant was sentenced to a term of imprisonment for 3 years to be suspended after he had served a period of nine months’ imprisonment. The circumstances of that offence were that a colleague of the applicant held a replica pistol against the neck of one of the victims who was told that a bullet would be put in him. The applicant was himself armed with a screwdriver and had personally robbed the victim by taking his wallet out of his pocket and then taking money from the wallet. Hoath DCJ remarked the “robbery must have been a terrifying experience” for the two victims. His Honour also remarked: “Despite your age, on any view of the circumstances of this offence, a sentence of imprisonment, and not an insubstantial one, must be imposed. The offence was committed in company. Two of you were armed and S made graphic threats to shoot C”. On that occasion His Honour also warned the applicant about the consequences if he committed another offence punishable by imprisonment within a period of four years.
20. In 2004 the applicant appeared before the Supreme Court of Queensland when he was convicted of the offence of grievous bodily harm with intention to cause that harm. That offence occurred after midnight in December 2002. The applicant was sentenced to a term of imprisonment of 8 years. Chesterman J, in addressing the applicant, remarked: “you stabbed him three times in the abdomen with a knife with which you armed yourself a little earlier in the evening”. In giving evidence before us, the applicant confirmed that he asked one of his friends to give him the knife. His Honour also described one of the circumstances of the grievous bodily harm: “One of the wounds inflicted on Mr E. was life threatening. It penetrated his liver and, but for emergency surgery, he would have died. The other two wounds were serious, but not life threatening. It seems that Mr E. was out on a night of pleasure with one of his friends, going about his lawful business, when you attacked him in this violent way”. Chesterman J declined to make a declaration that the offence was a serious violent one in recognition of the youth of the applicant and the factors of cooperation and prospects of rehabilitation.
21. In 2010 the applicant was convicted before the Magistrates Court of four offences, including the offences of wilful damage to property and an attempt to enter a dwelling with intent to break, and was sentenced to 4 months imprisonment for each offence. The applicant informed us that the circumstances of these offences occurred when he broke a sliding door to a dwelling; he asserted that he broke the sliding door with his foot. Other material before us indicates that he in fact used an instrument to open the sliding door. The applicant was disturbed by the presence of a female resident in the dwelling. The applicant then decamped from the dwelling without actually entering the dwelling. The applicant stated that he committed the offence because he was “angry” and “frustrated” because he had “no job” and his father was ill.
22. We have taken into account that the applicant has an extensive criminal history which includes convictions for armed robbery, grievous bodily harm, the unlawful use of a motor vehicle, wilful damage to property, attempted breaking and entering, stealing and receiving tainted property. The offences were committed between 2002 and 2010. His most recent convictions concern offences that were committed while the applicant was angry. The first offence occurred in 2002, less than two years after his arrival in Australia. The offences appear to have been committed at regular intervals after the applicant has been released from prison.
23. We conclude that the offending conduct of the applicant is certainly “serious” within the meaning of Direction 41.
Risk that the conduct may be repeated
24. We are required by Paragraph 10.1.2 of Direction 41, when assessing the risk of harm to the community, to consider the risk that the conduct may be repeated. Paragraph 10.1.2(1) of Direction 41 provides that “the person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending”.
25. Paragraph 10.1.2(2)(a) of Direction 41 requires us to consider the recent history of convictions, which should be considered as indicating an increased risk of re-offending. Certainly, after the applicant was last released from prison he was convicted in 2010 of four indictable offences. This certainly in our view is indicative of an increased risk of re-offending.
26. Paragraph 10.1.2(2)(b) of Direction 41 requires us to consider “evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation”. We are aware that the applicant has completed a number of courses whilst in prison including the anger management course. In giving evidence he discussed some aspects of his anger management course. We have examined his conduct whilst he has been in prison. There are some reports which indicate that he was generally of good conduct whilst he was in prison. However, we view with concern the fact that whilst in prison he underwent urinalysis which returned a positive result for marijuana; that occurred in November 2008 when it was decided he should be transferred to more secure accommodation.
27. The applicant complained that since his most recent return to prison he has only been allowed to undertake what appear to be general educational courses. He did not place before this Tribunal any concrete plans to assist in his rehabilitation. The applicant gave evidence that he will not offend in the future. We are concerned that in giving evidence the applicant did not express any remorse about his recent criminal conduct. The tenor of his evidence was to minimise the seriousness of his recent offences. It was fortunate that the resident of the dwelling confronted the applicant only when the applicant was outside the dwelling and had not yet entered the dwelling. The applicant was in a state of anger at the time and we are concerned about what may have happened if the applicant, who is a strong and fit young man, had an altercation with a female inside her own home.
28. In considering the risk of recidivism we have had regard to the decision of Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 in which Davies J (as President of this Tribunal) held that even if the risk of recidivism is not high, that risk will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In this context we mention that the applicant has been convicted of violent offences: in one case the victim would have died if he had not been given emergency surgery. We are concerned that on that occasion the applicant had made a conscious decision to obtain a knife. We also have regard to the fact that the applicant committed his last offences whilst he was experiencing anger management issues.
29. We have also considered the case of Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 208 in which the Full Court of the Federal Court of Australia held that a real risk of recidivism is one that is not “far-fetched or fanciful”. In this case we consider that there is a real risk of recidivism which is not far-fetched or fanciful having regard to the unresolved anger management issues of the applicant.
30. In considering the likelihood of recidivism we take into account that the applicant committed offences whenever he was released from prison. His offence of grievous bodily harm was committed whilst the applicant was on bail.
31. The fiancée of the applicant has given a letter of support in which she claimed that the applicant was a “changed man”. In her evidence she stated that she would assist the applicant not to offend in the future. His fiancée stated that their relationship began seriously in February 2010. They became engaged in May 2010 after he was returned to prison. While we accept that his fiancée will support the applicant, we observe that the offences of wilful damage to property and an attempt to enter a dwelling with intent occurred on 11 March 2010: this was more than one month after their relationship had entered a serious phase. We are not confident that the influence of the applicant’s fiancée will enable him not to offend in the future.
32. Having regard to all of the evidence we find that there is a real risk that the applicant will re-offend. Given this finding and the finding that the offences and conduct are serious, we have come to the conclusion that the first primary consideration weighs strongly in favour of cancellation of the visa.
SECOND PRIMARY CONSIDERATION: WHETHER MR TEVITA WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
33. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent formative years in Australia, but less weight should be given “if the person began living in Australia as a minor but was close to attaining adulthood at that time”.
34. As the applicant was aged 15 years when he first began living in Australia, this second primary consideration weighs slightly against cancellation of the visa.
THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR TEVITA WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY
35. Paragraph 10.3 of Direction 41 provides that consideration should be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.
36. The applicant arrived in Australia in 2000. However, within three months of his arrival he was given a certificate of caution by the Inala Child Protection and Investigation Unit for a number of minor offences. His first serious offence was committed less than two years after he arrived in Australia. Even though he was 17 years of age at the time of that offence, we consider that this third primary consideration weighs strongly in favour of cancellation of the visa.
FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS
37. The fourth primary obligation requires us to consider the relevant international obligations which have been earlier mentioned. There is no evidence that these international obligations have any relevance to this application. The applicant has no children and there is no evidence that he has any significant relationship with any child. We consider that the fourth primary consideration has no relevance to this application.
OTHER CONSIDERATIONS
38. We have considered the other considerations that are outlined in paragraph 11 of Direction 41. In view of the fact that the parents and some siblings of the applicant reside in Australia we acknowledge that the applicant would suffer some hardship if he was removed. We conclude that these other considerations, which we will examine, weigh slightly against the cancellation of the visa of the applicant.
Family ties, the nature and extent of any relationships
39. If the applicant was removed from Australia he would leave behind his parents and siblings. His father, who was not available to give evidence as he was at a church conference overseas, gave a statement that his family needs the support of the applicant. His mother also gave evidence that their family needs his support and protection. However, for much of the time that the applicant has been in Australia the family has not had the benefit of his support or protection as he has been imprisoned during that time. The mother of the applicant gave evidence that the family is on a tight budget and has difficulty in meeting commitments under the mortgage. However, there is evidence before us that both parents are still in gainful employment. One sister of the applicant gave evidence that she needs the support of her brother.
40. The fiancée of the applicant has stated that she intended to join the applicant in New Zealand if he was returned to New Zealand. His fiancée intends to undertake studies in make-up artistry in the future and has found that there is such a course available in Auckland. His fiancée has been loyal in regularly visiting him each week while he is in prison. The applicant will benefit from the support of his fiancée if he is returned to New Zealand.
Age
41. The applicant is a young man in his twenties. We do not consider that this factor operates to prevent his removal from Australia.
Health
42. There is no evidence before us of any medical condition that is suffered by the applicant which would operate to prevent his removal from Australia.
Links to the country to which he would be removed
43. The applicant and his mother informed the Tribunal that the applicant has close relatives, including grandparents and cousins, in New Zealand. Most relatives appear to be in Auckland although there is also a relative in the South Island. The brother of the applicant currently works in New Zealand and would be able to assist his brother.
Hardship likely to be experienced by the applicant or his immediate family members lawfully resident in Australia
44. The applicant informed the Tribunal that he would suffer hardship if he is forced to return to New Zealand as he would be separated from his parents. The family of his fiancée is also in Australia. His fiancée supported his application to remain in Australia. We appreciate that the applicant would face difficulties in establishing a new life in New Zealand after being absent from that country since 2000. However, the applicant will have the support of his fiancée as well as a number of relatives in the Auckland area that would be supportive of the applicant. His brother is also working in New Zealand. The applicant has employment experience in meat packing and it can be expected that in New Zealand he can find employment in that country, which has a large meat export industry. New Zealand also provides social security benefits to its citizens.
Level of education
45. We are satisfied that any lack of formal education has not impacted adversely on the ability of the applicant to present his claim. The applicant is an articulate man who had assistance in the preparation of his application. He had the support of his mother who attended the hearing of the application and gave evidence in support of his application.
Whether the applicant has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act
46. The applicant has not been formally advised in the past about conduct that brought him within the deportation provisions or the character provisions of the Act.
47. While the applicant has not received any warning from the Department, the applicant certainly has had a number of warnings concerning his criminal conduct from judicial officers that he has disregarded.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
48. We have concluded that the first primary consideration in respect of the protection of the Australian community and the third primary consideration concerning the length of time that the applicant has been in Australia before engaging in criminal activity weigh strongly in favour of the cancellation of the visa of the applicant.
49. This must be balanced by the conclusion that the second primary consideration concerning whether the applicant was a minor when he began to live in Australia weighs slightly against cancellation. We also consider that that the other considerations that are outlined in paragraph 11 of Direction 41 weigh slightly against the cancellation of the visa. However, under Paragraph 11(2) of Direction 41 these other considerations while being taken into account, must be given less weight than that given to primary considerations.
50. After examining the circumstances of the primary considerations and the other considerations in Direction 41 we consider that the factors weighing in favour of cancellation of the visa outweigh the factors against cancellation. In our view the discretion to cancel the visa should be exercised.
DECISION
51. We affirm the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President and Dr P McDermott RFD Senior Member
Signed: ...........................[Sgd]..................................................
Research Associate
Date/s of Hearing 24 June 2011
Date of Decision 30 June 2011
Applicant was self-represented
Solicitor for the Respondent Jan Cumming, Clayton Utz
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