Tovia Tovia and Minister for Immigration and Citizenship

[2009] AATA 412

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 412

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1340

GENERAL ADMINISTRATIVE DIVISION		)
Re		Tovia Tovia

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date5 June 2009

PlaceMelbourne

Decision The decision under review is set aside and a decision that the applicant’s visa not be cancelled is substituted.

…...........................................

Deputy President

CATCHWORDS – MIGRATION ACT – whether applicant’s visa should be cancelled – applicant convicted of indecent assault, aggravated burglary and false imprisonment – applicant sentenced to three years and three months imprisonment – applicant did not pass character test – whether discretion not to cancel the applicant’s visa should be exercised – protection of Australian community – expectations of Australian community – best interests of the child – decision under review set aside, applicant’s visa should not be cancelled.

Migration Act 1958 ss 499 and 501

REASONS FOR DECISION

5 June 2009 Mr G. L. McDonald, Deputy President

1. The applicant seeks a review of the decision made by a delegate of the Minister for Immigration and Citizenship cancelling his Class TY Subclass 444 Special Category visa (the visa) pursuant to s 501(2) of the Migration Act 1958 (the Act).

The Hearing

2.      At the hearing, the applicant was represented by Mr Hughan of counsel and Mr Brown appeared on behalf of the respondent.  The Tribunal had before it the documents given to the applicant at the time of the notification of the delegate’s decision and supplementary documents filed by the respondent.

Background

3.      The applicant was born in 1986 in Western Samoa.  He lived in that country until he was 18 years old.  At the age of four or five years, arrangements were made for the applicant to be adopted by an uncle in New Zealand.  The applicant consequently obtained New Zealand citizenship.  However, the applicant’s parents changed their mind and did not let him go.  The only time the applicant has spent in New Zealand is about one hour at the airport whilst on his way to Australia.

4.      The applicant migrated to Australia in 2005, living with his aunt and her two young sons.  He lived in Sydney for two years and then moved to Melbourne with his aunt and her family.  While he has been in Australia, up until the time criminal charges were laid against him, he has been steadily employed in various jobs.  Since coming to Australia the applicant has increased his alcohol intake.  He gave evidence that, before he was charged, he would often consume a slab of beer each weekend and smoke cannabis.

5.      The applicant gave evidence that he is very close to his aunt, Analega Tovia-Leleisiuao, and her two sons.  Ms Tovia-Leleisiuao gave evidence that she feels as though she is a second mother to the applicant.  The applicant has had considerable involvement in the lives of his aunt’s two sons, his cousins.  He took the boys to school, played with them, and contributed financially to their upbringing.

6.      In June 2007 the applicant noticed an attractive girl in his neighbourhood.  At that time he did not know where she lived, but later saw her outside a house that he passed on the way to a friend’s house.  One night, at about 11pm, the applicant went to her house and knocked on the door and asked her name.  The woman, Ms C, did not know who he was and told him to go away.

7.      Some time later, the applicant went to Ms C’s house again, at night, and knocked on the door.  Ms C sent him away but the applicant left a note with his name and telephone number.

8.      On the third occasion the applicant attended Ms C’s home, he was again sent away and he again left a message with his telephone number.  After this incident, Ms C and her boyfriend called the applicant on the telephone and told the applicant to leave Ms C alone.  Ms C told the police she was being harassed by the applicant and gave them the notes he had left.

9.      On the fourth occasion the applicant went to Ms C’s home, on 17 August 2007, he entered the house through the back door at around 1:45am.  Ms C was sleeping in her bedroom.  The applicant did not know Ms C had a young son who was sleeping in another bedroom in the house.  The applicant entered Ms C’s bedroom and lay down next to her on the bed.  Ms C woke up and saw the applicant on her bed.  The respondent says the applicant had a knife at her throat at this point in the night.  The applicant says that it was later that he produced the knife.  The timing of when the knife was produced is irrelevant.  At some point, Ms C’s son began to cry and the applicant allowed her to tend to him.  While Ms C was in her son’s bedroom, the applicant stood outside the room.

10.     When Ms C returned to the bedroom, the applicant lay down on the bed with her again and held a knife to her throat.  It was at this time that he touched Ms C on the breast, bottom, stomach and legs.  Ms C remained calm and engaged him in conversation.  The applicant says they talked for about two hours, he told her about his childhood and they organised a date.  When he was about to leave the applicant apologised for his behaviour.  Ms C then reported the incident to police.

11.     A few days later, while the applicant was at work, the police left a message with the applicant’s aunt that they wanted to speak to him.  The applicant attended the police station on 21 August 2008 and was interviewed.  He admitted to Ms C’s account of the incident.  He subsequently pleaded guilty to four charges – one count of aggravated burglary, one count of false imprisonment, and two counts of indecent assault.  He was sentenced to three years and three months imprisonment, with a non-parole period of 18 months.  The applicant initially appealed his sentence, but later abandoned the appeal.

12.     The applicant says that the incident took place while he was inebriated and that he had smoked two cannabis ‘joints’ that night.  He states that after he was charged he stopped drinking alcohol and smoking cannabis.  He also had to stop working because his bail conditions interfered with his work hours.

13.     While in jail, the applicant has completed a 40 hour drug program and an occupational health and safety course.  He is currently undertaking a sex offender treatment program.  He has been assigned various jobs while in prison, he has either resigned or been dismissed from three jobs.  He has also been charged with a minor prison offence for having in his possession a small amount of steel wool and two batteries.  Apparently the items were used to light cigarettes.

14.     The applicant becomes eligible for release on parole on 26 October 2009.  On 11 March 2009 the respondent made a decision to cancel the applicant’s visa.

Legislation

15. The applicant has had his visa cancelled pursuant to s 501(2) because he is a person who does not pass the character test set out in s 501(6) because of his substantial criminal record (defined in this case by s 501(7)(c)). If the applicant is to remain in Australia a discretion, available in s 501(2), must be exercised in his favour. The exercise of the discretion is guided by a ministerial direction. Clause 2.3 of Direction No. 21 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 (the direction),[1] issued pursuant to s 499 of the Act, requires three primary considerations to be addressed when considering the exercise of the discretion, vis:

(a)  the protection of the Australian community, and members of the community;

(b)  the expectations of the Australian community; and

(c)  in cases involving a parental or other close relationship between children and the person under consideration, the best interests of a child or children.

[1] Issued on 23 August 2001.

16.     Clause 2.17 of the direction sets out additional considerations including, relevantly in this case:

(a)  the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

(b)  genuine marriage or de facto relationship to an Australian citizen;

(c)  the degree of hardship which would be cause to immediate family members lawfully resident in Australia;

(d)  family composition of the non-citizen’s family;

(e)  the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f)   …

(g)  …

(h)  any evidence of rehabilitation and any recent good conduct;

(i)    whether the application is for a temporary or permanent visa;

(j)    the purpose and intended duration of the entry or stay, including any significant compassionate circumstances;

(k)  the fact that a non-citizen has been formally advice in the past about conduct that brought him or her within the provisions of the Act permitting deportation or visa cancellation or refusal.

17.     While the primary considerations are clearly to be given greater weight, consideration of them does not necessarily result in them prevailing over other considerations.  It all depends on the circumstances.

Protection Of The Australian Community

18.     The offences of the applicant, involving indecent assault and the threat of violence, are, and are to be regarded as, very serious (clause 2.6 of the direction).  It was the conduct connected to the offending which the delegate found to be “particularly repugnant” because of it occurring “against a defenceless person in her own home with a young child nearby.”[2]  It is put, on behalf of the applicant, that the offences are not at the highest end of the scale, in the sense that they are not so repugnant that other considerations become of less importance.  Consideration of this aspect is governed by the two things – the facts involved in the offending and the length of the sentence imposed.  In this case those two aspects present a dilemma faced and acknowledged by the sentencing judge, Judge Sexton, in her remarks.  On the one hand the facts – breaking into the victim’s home in the early hours of the morning, entering her bedroom and upon her waking pointing a knife at her throat, committing sexual assault and holding her for a time against her will – indicate a high degree of seriousness.  The Australian community has every right to be protected against such behaviour.  However, the sentence passed by her Honour of three years and three months with the applicant eligible for parole after one year and nine months does not reflect, on its face, the seriousness of the offence.  The question is why is this?

[2] Statement of reasons for cancellation of visa under s 501(2) of the Migration Act 1958, 11 March 2009, paragraph 5.

19.     There are several factors, some of which are mentioned by the sentencing judge.  That a young man is attracted to a young attractive female is natural enough.  That he should persist once rejected is also understandable.  To continue persisting having been discouraged on three separate occasions,[3] including telephone calls from the young lady and her boyfriend in which it was conveyed that a complaint would be made to the police, and entering the house uninvited and engaging in the conduct outlined is, as her Honour described it, “bazaar.”

[3] Although the applicant only admitted two occasions to the Tribunal, her Honour, in her sentencing remarks found that there were three occasions.

20.     The applicant has no prior convictions since he has been in Australia and there is no evidence of any such convictions in his native Western Samoa.  It is as if these offences were all committed seemingly out of character and are some sort of aberration.  However, to describe them as such may help explain them as happening but it does not excuse the applicant.

21.     It is evident that the applicant had become used to drinking fairly heavily over the weekend.  Something which was not told to the Court at the time of his sentencing was that he also had the habit of smoking one or two cannabis ‘joints’ also on the weekend.  The judge found that his level of alcohol intoxication caused his inhibitions to be lessened but did not accept that he was as intoxicated as he later made out to the police.  The additional factor of cannabis ingestion may help explain his loss of control more fully but again cannot act as an excuse for his actions.  For those actions he must take responsibility.

22.     Just as her Honour was troubled by the applicant’s lack of clear explanation as to what led him to offend, so is this Tribunal.  However, while he may not have had an appreciation of the serious nature of his behaviour at the time it occurred, he seems subsequently to have acquired a better understanding.  He admitted his offending to the police.  He pleaded guilty at the first available opportunity saving the victim from having to relive her nightmare in giving evidence before a jury and the state from the expense of a defended trial.  He withdrew an appeal against the sentence imposed, he claimed, on the basis that he ultimately considered the sentence imposed as being fair to him given his actions towards the victim.  He repeated to the Tribunal that he did not want to return to jail and the thought of doing so would inhibit him if he was tempted to commit any further offending.  He also, in the period between August 2007, when the offences were committed, and April 2008, when he was sentenced, gave up drinking alcohol and smoking cannabis.  Whilst he was on bail during that period and thus had an immediate imperative to behave, that he did so demonstrates, in a small way, that he is capable of curtailing errant behaviour.

Deterrence

23.     The respondent does not see there being any factor involved with the cancellation of the applicant’s visa which would deter anybody else from committing like offences.  The Tribunal agrees with this submission.

Expectations Of The Australian Public

24.     This was a factor which the delegate found to be of moderate weight in deciding to cancel the applicant’s visa.[4]  The expectation of the Australian community is a difficult concept from several points of view.  One, is because, of course, different people in the community are bound to have differing expectations.  Another, also recognised in the respondent’s outline of submissions, is the need to consider compassion.[5]  It is difficult to ascertain an absolute view about what is expected which does not take into account other factors.

[4] Statement of reasons for cancellation of visa under s 501(2) of the Migration Act 1958, 11 March 2009, paragraph 14.

[5] Statement of reasons for cancellation of visa under s 501(2) of the Migration Act 1958, 11 March 2009, paragraphs 11 and 13.

25.     The Tribunal must exclude consideration of extreme views – that is, those who, on the one hand, would adjudge the applicant’s offending without more as warranting his immediate visa cancellation and those, on the other, who may take the view that he has been punished enough by serving a jail sentence and that his youth and apparent immaturity should result in compassion being extended to him and that he ought be given a second chance.  Consideration of this aspect involves finding a balance between competing and often difficult to reconcile factors, for example the long term consequences (as against any immediate revulsion arising from the commission of the crime), elements of compassion involving both a consideration of the affect on the victim of the offending, as well as the circumstances of the applicant and his/her relatives and friends and the level of tolerance which could be expected within the community.

26.     The Tribunal is satisfied that the community, acting reasonably and appraised of the circumstances of the offences and of the applicant’s personal circumstances, would more likely than not be divided on what may be expected.  The factors on each side of the divide are fairly evenly balanced.  That being the case, the Tribunal would, in the long standing tradition of the Australian community, favour the applicant being given another chance to prove himself as being a worthy community member.

Best Interests Of The Child And Other Considerations

27.     The applicant’s parents reside in Western Samoa.  While the applicant’s father is a builder, and his mother worked as a housekeeper, the Tribunal accepts that they are not financially well off and that work is difficult to come by and retain in Western Samoa.  It was for that reason that the applicant’s parents arranged for the applicant to be adopted by his paternal uncle in New Zealand.  It was anticipated that the applicant would find better work opportunities, at a greater rate of remuneration, than could be obtained in Samoa.  It was the applicant’s parents who did not want the applicant to relocate to New Zealand at too young an age (initially proposed when the applicant was four or five years old).  It was his paternal aunt’s intervention which resulted in him bypassing New Zealand and coming to Australia.  The uncle then in New Zealand has apparently also moved to Australia.

28.     The applicant has been successful in obtaining work in Australia.  He has provided financial support to his family in Western Samoa.  He has also provided financial and other support to his aunt’s family in Australia.  The Tribunal accepts his aunt’s evidence that the applicant voluntarily provided financial support for her two youngest children and assisted her and her family with the care of those children in 2007 to 2008 when she was indisposed because of treatment for cancer.  These are commendable qualities in any young man.

29.     The Tribunal accepts that the applicant enjoys a close relationship to his aunt’s two younger children, his cousins.  Just as his aunt provided care for him when he was a child so he now reciprocates with his two young cousins.  The fact that the applicant is not in a parental relationship to the children does not detract from him having a close relationship with them.  He is not the primary care giver to the children but he clearly contributes financially, emotionally and spends time with the children.

30.     During the course of the hearing the Tribunal raised a concern that the applicant's errant behaviour may set a bad example to the children.  This is a factor which weighs against the exercise of the discretion in favour of the applicant.  However, it is somewhat balanced by the applicant's aunt's acceptance of the applicant returning to his pre offending living arrangements with her family.  There is nothing to suggest that the aunt and her family circumstances are anything but a steadying influence on the applicant.  That she is willing to accept him, in the full knowledge of his offending, indicates that she, and presumably her husband (who was present throughout the hearing and who provided a written reference for the applicant but who did not give oral evidence), have concluded that he will not have an adverse influence on the children.

31.     The applicant anticipated that if he went to New Zealand that he would stay with another uncle in Wellington.  It was the aunt’s evidence that there has not been much contact between that uncle and the rest of the family.  The applicant said if he was returned to New Zealand he would try and obtain work so that he could continue to provide additional support for his family in Western Samoa.  He said he would be reluctant to return to his extended Western Samoan family because there was little work available and what work was available was low paid.  There is no reason not to accept the situation in Western Samoa as the applicant claimed.  His evidence was confirmed by what his aunt said of the circumstances in Western Samoa.  The applicant also expressed concern of return to Western Samoa because of the shame he would bring on his family as the result of his offending.  He demonstrated that he was capable of thinking about others by articulating this concern.

32.     The applicant has had a minor prison infringement since his incarceration.  He has undertaken work in prison in four different areas – welding, number plate manufacture, yard cleaning and wooden products production.  The first lasted for six months, the others were of shorter duration.  All ended in him quitting or being dismissed from the jobs assigned.  There are comments in his prison record as to his lack of work ethic in prison.[6]  The Tribunal notes that the prison assessment does not seem to accord with his stated pre-prison work habits which were favourable.  It is axiomatic to say the circumstances of working in a prison environment are very different from these pertaining to working outside.  He has successfully completed a 40 hour drug counselling and rehabilitation course and an occupational health and safety course.  He is undertaking English literature classes.  He has yet to complete a sexual offenders’ course and it is a condition that he successfully completes that course prior to being paroled.

[6] Supplementary documents file by the respondent on 28 May 2009, pages 38 and 40.

33.     There is no reciprocal parole arrangement between New Zealand and Australia.  While the nature of his offending is likely to be reported to the New Zealand authorities, he will not receive guidance and support from any parole services if his visa is cancelled and he is returned to New Zealand.  He came across to the Tribunal as an immature young man.  In prison it was noted that he engaged in “childish antics.”[7]  Such a person stands to benefit from guidance given to parolees through the parole service.  The absence of that guidance would be disadvantageous to his rehabilitation.

[7] Supplementary documents file by the respondent on 28 May 2009, page 41.

34.     A number of references were tendered on the applicant’s behalf.  They speak well of him and come from people who apparently know of the offences he has committed.

35.     Overall, with respect to the best interests of the children and the other considerations, the balance is in favour of the discretion being exercised in favour of the applicant.

Tribunal’s Decision

36.     The Tribunal has found the competing factors to be considered in this case to be difficult to resolve.  However, on balance, the Tribunal is satisfied that the best interests of both the community and the applicant point, having regard to the reasons earlier stated, to the discretion being exercised in a manner favourable to the applicant.  He should not expect, however, that if there is any repeat of the type of offending exhibited in this case that he would be extended any further opportunity to remain in Australia.

37.     For the above reasons the decision under review is set aside and a decision that the applicant’s visa not be cancelled is substituted.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G. L. McDonald, Deputy President

Signed:         .....................................................................................
  Associate                  Grace Horzitski

Date of Hearing  1 June 2009
Date of Decision  5 June 2009
Counsel for the Applicant         Mr G. Hughan
Solicitor for the Applicant          Ms L. Stewart, Clothier Anderson & Associates
Solicitor for the Respondent     Mr D. Brown, Australian Government Solicitor