Tomo and Minister for Immigration and Citizenship

[2012] AATA 16

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2012] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2011/4750

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jovan Tomo

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date16 January 2012

PlaceSydney

Decision The decision under review is affirmed.

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

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Direction [41] – character test – substantial criminal record – primary considerations – protection of the Australian community –  seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations – family ties, the nature and extent of any relationships – age – health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review affirmed

RELEVANT ACT

Migration Act 1958 (Cth): s 501

OTHER AUTHORITIES

Direction [no. 41] - Visa refusal and cancellation under s 501

Rosson v Minister of Immigration and Citizenship (2010) 191 FCR 390

REASONS FOR DECISION

16 January 2012 Mr R P Handley, Deputy President          

1.      Mr Tomo has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

BACKGROUND

2.      Mr Tomo was born in New Zealand in 1985 and is a New Zealand citizen.  He first arrived in Australia on 15 October 2000 at the age of 14 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa.  He continued to hold this visa at the time of cancellation.  Mr Tomo is single and has no children.  His parents, his sister and two brothers live in Australia as do a significant number of his extended family.

3.      Mr Tomo has an extensive criminal history dating from 2001 with the most recent offences dating from 3 February 2010:

Offence	Charge date	Sentencing date	Sentence
AS AN ADULT
Assault with Act of Indecency	1/11/2009	19/2/2010, convictions confirmed on appeal 13/5/2010	Imprisonment: 2 years (non-parole period 18 months – reduced on appeal to 13 months)
Stalk/intimidate	14/10/2009	As above	Imprisonment: 12 months (non-parole period 8 months)
Assault/resist officer	14/10/2009	As above	Imprisonment: 6 months
Affray	14/10/2009	As above	Imprisonment: 12 months (non-parole period 8 months)
Use offensive language in/near public place or school	5/9/2009	As above	Conviction without penalty
Travel of attempt to travel without valid ticket	5/9/2009	As above	Conviction without penalty
Assault officer in execution of duty	20/8/2009	As above	Imprisonment: 3 months
Assault occasioning actual bodily harm (DV)	2/11/2008	16/1/2009	Imprisonment: 6 months
Maliciously destroy property (2 counts)	2/11/2008	As above	Imprisonment: 3 months
Larceny	2/11/2008	As above	Imprisonment: 1 month
Common assault (DV)	2/11/2008	As above	Imprisonment: 1 month
Use offensive language in/near public place or school	(unknown)	As above	No sentence imposed, parole order revoked
Robbery in company (2 counts)	24/9/2006	20/4/2007	Imprisonment: 2 years and 6 months (non-parole period of 16 months) (commencing 24/9/2006)
Common assault	24/9/2006	As above	(Taken into account in above)
Use offensive language in/near public place or school	4/2/2006	1/3/2006	Fine: $500 plus $65 court costs
Behave in offensive manner in/near public place or school	16/9/2005	12/10/2005	Fine: $150 plus $65 court costs
Breach of bail	5/3/2005	5/3/2005	New bail order made
Maliciously destroy or damage property <= $2000	7/1/2005	4/7/2005	Good behaviour bond: 18 months
Assault occasioning actual bodily harm in company of others	7/1/2005	As above	Imprisonment (suspended): 12 months; Good behaviour bond: 12 months
Larceny	7/1/2005	As above	Fine: $500 plus $65 court costs
Breach of bail	13/3/2004	21/4/2004	New bail order made
Breach of bail	30/11/2003	13/2/2004	New bail order made
AS A JUVENILE
Robbery in company	19/9/2003	31/5/2004	Without conviction, 8 months Control Order (suspended); Good behaviour bond: 8 months
Common assault	19/9/2003	As above	Without conviction, Probation: 12 months
Breach of bail	22/2/2003	11/3/2003	Without conviction, new bail order made
Fail/refuse to comply with direction	22/2/2003	As above	Without conviction, Caution
Use offensive language in/near public place or school	22/2/2003	As above	Without conviction, Caution
Maliciously destroy or damage property <= $2000 (6 charges)	25/9/2002	As above	Without conviction, Good behaviour bond: 8 months
Assault occasioning actual bodily harm	17/5/2002	30/7/2002	2 months Control Order (suspended); Good behaviour bond: 9 months
Common assault (2 counts)	11/8/2001	As above	Probation: 12 months
Supply prohibited drug	6/3/2001	9/5/2002	Probation: 12 months

4.      Mr Tomo has received numerous prison sentences, a number being of 12 months or more, with the most serious being of two years and six months.  He has spent the following periods in custody: from 27 September 2006 to 23 January 2008, from 3 November 2008 to 1 May 2009, and from 4 November 2009 to 1 November 2011 when he was released and taken into immigration detention at Villawood.  

5.      Mr Tomo has been punished for various offences while in custody, including on two occasions for intimidation (30 January 2011 and 5 April 2011) and on five occasions for failing a urine test, most recently on 29 March 2011 when he tested positive for cannabis, alprazolam and buprenorphine, and on 4 September 2011 when he tested positive for methyl amphetamine.

6.      According to the Minister’s representative, on 19 October 2007, a delegate of the Minister sent Mr Tomo a counselling letter, which is undated, advising that any further criminal convictions or misconduct could result in consideration being given to the cancellation of his visa. 

7.      On 5 January 2011, the Department of Immigration and Citizenship (the Department) notified Mr Tomo of its intention to consider the cancellation of his visa and inviting him to comment and provide further information.  Mr Tomo responded in February.  Later, the Department invited Mr Tomo to comment on some additional information but it appears he did not do so.  On 12 October 2011, a delegate of the Minister decided to cancel Mr Tomo’s visa and notified Mr Tomo of this by letter dated 14 October 2011.  On 3 November 2011, Mr Tomo applied to the Tribunal for a review of this decision.

RELEVANT LAW AND POLICY

8. Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.  Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record.  ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

9.      Mr Tomo has been sentenced to terms of imprisonment of 12 months or more on a number of occasions.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Tomo’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa refusal and cancellation under s 501 of the Act (Direction [41]).  Direction [41] contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

10.     The ‘primary’ considerations in Direction [41] are set out in paragraph 10(1):

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(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).

(Original emphasis.)

11.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction [41] paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

Primary Considerations

12.     The ‘primary’ considerations relevant in Mr Tomo’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity.  These considerations are addressed below.

the protection of the australian community

13.     Direction [41] identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

The seriousness of the conduct

14.     With regard to the seriousness of Mr Tomo’s conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction [41]).  Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction [41] are assault, sexually-based offences and serious theft.  Mr Tomo has been convicted of assault occasioning actual bodily harm, assault with act of indecency, assault of a police officer in the execution of his duty, and common assault.  He has also been convicted of robbery and larceny.  

15.     Paragraph 10.1.1(3) of Direction [41] states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

16.     As noted above, Mr Tomo has committed a significant number of criminal offences with relatively short periods in between offences and has received lengthy prison sentences on a number of occasions including sentences of two years and of two and a half years.  He has served three periods in prison: of 16 months, six months and two years.  Mr Tomo was in the community for approximately nine months between the first and second periods of imprisonment and six months between the second and third periods of imprisonment. 

17.     In sentencing Mr Tomo on 19 February 2010 for the assault with act of indecency, Magistrate Armati described how Mr Tomo, wearing a mask, had approached a woman at a bus stop, had played with her hair, touched her breasts and put his hands up her skirt.  The Magistrate said that this “act of indecency … must be viewed, so far as acts of indecency are concerned, at the upper end of the scale of gravity and must warrant the imposition of a heavy sentence”. 

18.     On 20 April 2007, Mr Tomo was sentenced for two counts of robbery in company and common assault in relation to an incident in September 2006 when Mr Tomo and two other men assaulted two 16 year old boys and stole their iPods and cash and threatened a witness.  Judge Keleman, sentencing Mr Tomo, said “Offences of this type are objectively most serious.”  The Judge commented that the present offence was “aggravated by its commission whilst the offender was subject to a s 9 bond”.  An examination of Mr Tomo’s record shows that he has breached bail conditions on a number of occasions and has committed offences while on probation, while subject to a good behaviour bond, or while on parole. 

19.     In summary, Mr Tomo’s criminal misconduct has been of a serious nature over an extended period.

20.     With regard to mitigating factors, I note that Mr Tomo came to Australia at the age of 14 and quickly fell in with an older group who had an adverse effect on his behaviour.  However, the evidence indicates that he had already had behavioural problems at school in New Zealand leading to his being suspended from school for truancy and fighting.  According to the Pre-Sentence Report dated 18 February 2010 prepared by the NSW Probation and Parole Service, Mr Tomo said he commenced using cannabis at the age of nine and was consuming both cannabis and alcohol on a daily basis from the age of approximately 10. 

21.     Mr El-Hanania, representing Mr Tomo, submitted that I should also take into account Mr Tomo’s family background during his early years in New Zealand and that his father was then a heavy drinker and used drugs and was prone to violence. 

The risk that the conduct may be repeated

22.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction [41] requires that consideration be given to Mr Tomo’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders.  As noted above, he has breached bail orders, good behaviour bonds and, it appears, on 3 November 2008, the conditions of his parole. 

23.     In his statement dated 10 December 2011, Mr Tomo said that “throughout each and every offence I was under the influence of drugs and or alcohol”.  In sentencing Mr Tomo on 20 April 2007, Judge Keleman noted that “According to the pre-sentence report the offender demonstrates limited insight towards his excessive alcohol consumption and associated offending behaviour”.  Mr Tomo’s counsel, when addressing Magistrate Armati on 19 February 2010 referred to Mr Tomo using a “cocktail” of substances “from cocaine to ecstasy to amphetamines” and to his consuming large quantities of beer and spirits when in the company of his peers.  (See also the Pre-Sentence Report dated 18 February 2010.)  Despite a submission from Mr Tomo’s counsel that Mr Tomo realised that if he kept on taking drugs and drinking his life would be spent largely in custody, Magistrate Armati, sentencing Mr Tomo, said: “You have had every opportunity in the past to change your ways, to accept supervision and reform, and you have declined to do so”. 

24.     Comments have also been made about Mr Tomo’s anti-social behaviour.  In the District Court of NSW on 13 May 2010, Blanch CDCJ commented that Mr Tomo’s “behaviour has been entirely anti-social over a long period of time” and that his criminal history “indicates somebody who has shown a significant lack of appreciation of how serious his behaviour is”.  The Pre-Sentence Report dated 18 February 2010 states: “When discussing the ‘Assault with Act of Indecency’ offence, Mr Tomo failed to demonstrate any insight into the potential impact of his behaviour upon the victim.”

25.     A NSW Department of Corrective Services review of Mr Tomo’s prisoner classification on 7 April 2011 states he is a “known management problem” and that his co-operation with staff at the Dawn De Loas Correctional Centre is “poor”.  A summary of the review states: “Inmate has had numerous charges whilst at DDL.  Inmate Tomo has breached management plan which was set out below.  Charges include abuse female staff, not comply routine and drug charges.”  When asked about Corrective Services Case Notes recording two instances when he was abusive towards staff, Mr Tomo said he was upset on those days and the Notes fail to explain why he was unco-operative, in one instance because his father was ill and in hospital and he did not want to work because of this.

26.     It is clear from Mr Tomo’s evidence, from judicial comments, reports of the NSW Probation and Parole Service (for example, Pre-Sentence Report dated 18 February 2010), and records of the NSW Department of Corrective Services that Mr Tomo has a significant problem with alcohol and substance abuse.  Mr Tomo says in his statement dated 10 December 2012: “I have not taken drug [sic] or alcohol for approximately 20 months and feel once released from Villawood continual abstinence would be possible alongside Counselling.”  However, NSW Department of Corrective Services records indicate that substance abuse may be a continuing problem.  As noted above, Mr Tomo has failed urine analysis tests on a number of occasions, most recently on 29 March 2011 when he tested positive for cannabis, alprazolam and buprenorphine, and on 4 September 2011 when he tested positive for methyl amphetamine.  When asked about this, Mr Tomo said these instances were when he was stressing out about family problems and he knows it was the wrong thing to do.

27.     Mr Tomo commenced attending a Drug and Alcohol Group in March 2010 but completed only three of seven two hour sessions, and he attended a voluntary Alcoholics Anonymous program in early 2011 but, according to a Case Note dated 3 February 2011, was removed from the program because of his attendance history.  At the hearing, Mr Tomo said he had been unable to complete some programs as a result of being transferred to another Correctional Centre.  However, while this may have affected his completing some programs, it does not account for his failing to complete others.

28.     Mr Tenby, representing the Minister, referred me to a Corrective Services Case Note dated 15 February 2010 stating: “Inmate has not undertaken any AOD [Alcohol or Drug] or programs whilst in custody – has ‘been busy playing cards’ – discussed how this attitude will be seen by the Courts, Police and the Community”.

29.     Mr Tomo attended an Anger Management program in March 2010 but completed only one day of the five day program and, in October 2010, attended a Self-Management and Recovery Training (SMART) program, but was withdrawn from the program after missing sessions three, four and five.  The Immigration Report dated 10 December 2010 comments: “Mr Tomo’s lack of commitment in attending the SMART program may indicate a lack of motivation towards addressing his substance abuse issues.”

30.     At the hearing, Mr Tomo said that since his visa has been cancelled and he has been transferred to Villawood, he now fully realises the gravity of his situation, wants to address his problems and understands that he needs professional help to do so.  He is willing to attend a residential rehabilitation program for this purpose as part of his parole.  He said that since being in Villawood, he has trained daily in the gym, plays volleyball, uses the computers and cooks for other inmates.  He has not decided what he wants to do if he is released into the community, but wants to get a job and has the prospect of possibly working with his father.  In the longer term he would also like to marry and raise a family.

31.     Mr Tomo’s mother said she has visited her son in Villawood and has noticed that he has changed a lot.  He is involved in activities, has shown a much better attitude towards others, and recognises that he needs help.  If he is released into the community on parole, she will support him but intends to be strict.  Mr Tomo’s father said his son is aware of his drug and alcohol problem and, if released into the community, he will try and ensure his son attends counselling.  Mr Tomo’s father said he will do everything he can to assist his son and will try and find him a job, for example working with him for the same company assembling electrical power boxes.

32.     I note Mr Tomo says he will address his drug and alcohol problem, and his parents’ have expressed their willingness to support and guide him in doing so.  But despite this, Mr Tomo’s failure to address these problems in the past, including his not persevering with rehabilitation programs while in prison, his taking drugs in prison as recently as September 2011, and the reports of his conduct in prison and his past history of offending, do not give me confidence that he will address his drug and alcohol problem and suggest that there is a real risk of his reoffending.  In my view, given the seriousness of his offending over an extended period and the real risk of his reoffending, the protection of the Australian community strongly favours the cancellation of his visa.

whether a minor on beginning to live in australia

33.     The second primary consideration relevant in Mr Tomo’s case relates to his being a minor when he first commenced residence in Australia.  Direction [41], paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

34.     Mr Tomo arrived in Australia in 2000 aged 14.  His evidence and that of his parents indicates that all his immediate family and a significant number of his extended family are now living in Australia and, being of Maori background, he and his family have strong family bonds.  This consideration favours Mr Tomo’s visa not being cancelled.

length of time ordinarily resident

35. The third primary consideration relevant in Mr Tomo’s case – the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction [41]. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.

36.     Mr Tomo had been resident in Australia for approximately six months when he committed his first offence as a juvenile.  He committed a further offence five months later and additional offences, including assault occasioning actual bodily harm, malicious damage and robbery, over the course of the next three years while still a juvenile.  These offences were recorded without conviction but, as an adult, Mr Tomo continued with such offending behaviour as detailed above. 

37.     In Rosson v Minister of Immigration and Citizenship (2010) 191 FCR 390, at [23], Rares J said that such a history should be considered an unfavourable matter in weighing a person’s entitlement to a visa.

OTHER CONSIDERATIONS

38.     As noted above, Direction [41] states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Tomo’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Tomo and his immediate family members in Australia, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

39.     Mr Tomo’s evidence and that of his parents is that all his immediate family – his parents, sister and two brothers – and most of his extended family – aunties, uncles, cousins etc – are present in Australia.  His father acknowledged that he has a sister in New Zealand but said he does not get on with her and they do not keep in touch.  I accept that Mr Tomo has a close relationship with his parents and Mr Tomo’s being returned to New Zealand will cause both him and his immediate family anguish by reason of the separation.  I note that his mother suffers from a heart problem.  His father said that if Mr Tomo is returned to New Zealand, he would be devastated and might have to return to New Zealand himself to be with his son although he does not want this to happen.  Clearly, this would disrupt his father’s life in Australia. 

40.     I also accept that Mr Tomo may experience some hardship in establishing himself in New Zealand where he has no current familial ties.  However, this is the country in which he lived until the age of 14, he is familiar with the culture, and he is likely to have access to similar healthcare and financial assistance to that he might expect in Australia.  While they will not be present to support him in New Zealand, he will be able to maintain contact with his family in Australia through electronic and other means and they will be able to visit him there.  Mr Tomo should be able to adapt to living in his country of birth without major difficulty and if he is sufficiently determined to address his problems, he should be able to do so in New Zealand.  I note that Mr Tomo’s young age – he is 26 – and apparent good health favour his being able to find work and adjust to life in New Zealand.

41.     I note that on about 19 October 2007, the Minister’s representative sent Mr Tomo a formal warning that any further criminal convictions or misconduct could result in consideration being given to the cancellation of his visa.  It appears from Mr Tomo’s statement dated 10 December 2011 that he understood what this meant but it did not deter him, at least when affected by alcohol or drugs, from re-offending.  At the hearing, he said that he largely ignored the letter because he did not appreciate its significance.

Conclusion

42.     Weighing up the primary considerations, given Mr Tomo’s criminal history and the real risk of his reoffending, the protection of the Australian community strongly favours the cancellation of Mr Tomo’s visa.  I accept that the fact that he was a minor when he began living in Australia favours his visa not being cancelled but, in my view, in the particular circumstances of this case this is a lesser consideration than the need to protect the Australian community.  That Mr Tomo began engaging in criminal activity within six months of arriving in Australia should be viewed as an unfavourable consideration.  With regard to the ‘other considerations’ which should generally be given less weight than the primary considerations, while I accept that returning Mr Tomo to New Zealand will cause some hardship both to him and his immediate family, this should be considered against the background of his receiving a formal warning in October 2007 yet continuing to offend.  In any event, the protection of the Australian community is, in the particular circumstances of this case, the more important consideration.  In conclusion, I am satisfied that the decision to cancel Mr Tomo’s visa was the correct decision which should, therefore, be affirmed.

Decision

43.     The decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:
           ........[sgd]........................................................................
               Associate

Date of Hearing  11 January 2012
Date of Decision  16 January 2012
Representative for the Applicant               S El-Hanania

Representative for the Respondent          I Temby