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

Case [2020] AATA 2163

Tufuga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2163 (9 July 2020)

Division:GENERAL DIVISION

File Number:          2020/2393

Re:Saunoa Tufuga

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:9 July 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – multiple criminal offences – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358  
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

9 July 2020

  1. The applicant, Mr Saunoa Tufuga, seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

  2. The hearing was held in Melbourne on 1 July 2020. Mr Tufuga was self-represented.          The Minister was represented by Mr Aviram of Clayton Utz.

  3. For the following reasons, the Tribunal affirms the decision under review.

    BACKGROUND

  4. Mr Tufuga is a 28-year old citizen of New Zealand who first arrived in Australia in February 1998 when he was six years of age.[1] Apart from a single 10-day visit to New Zealand in late 2010, he has resided in Australia for the past 22 years.

    [1] Exhibit R1, 84.

  5. Mr Tufuga has been charged with approximately 60 offences since 2008. His Nationally Coordinated Criminal History Check dated 6 May 2019 discloses a conviction for armed robbery in 2016, several convictions for violent offences in 2017, as…

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AGLC
Tufuga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2163
Case
[2020] AATA 2163
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to refuse to revoke the mandatory cancellation of Mr Tufuga's visa. Mr Tufuga, a New Zealand citizen who had resided in Australia since childhood, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to his substantial criminal record, which included convictions for armed robbery and violent offences, resulting in a significant custodial sentence. He sought a review of the delegate's decision not to revoke this cancellation.

The Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Act. This involved assessing whether any identified reasons carried sufficient weight or significance to warrant the revocation of the cancellation decision, considering the overarching objective of protecting the Australian community from criminal or other serious conduct. The Tribunal also had to consider the best interests of Mr Tufuga's minor children, the strength and nature of his ties to Australia, and the extent of impediments he would face if removed from Australia.

In its reasoning, the Tribunal considered extensive evidence, including statements from Mr Tufuga's family and friends, his participation in rehabilitation programs, and his educational pursuits. It acknowledged Mr Tufuga's remorse and his stated desire to be a better father. However, the Tribunal found that the primary considerations of protecting the Australian community and the expectations of the Australian community weighed very substantially against revocation. While the best interests of his children and his ties to Australia weighed in his favour, these were ultimately outweighed by the risk to community safety.

Consequently, the Tribunal affirmed the decision under review, finding that there was no "another reason" of sufficient weight to justify revoking the mandatory visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal affirms the decision under review. BACKGROUND Mr Tufuga is a 28-year old citizen of New Zealand who first arrived in Australia in February 1998 when he was six years of age.[1] Apart from a single 10-day visit to New Zealand in late 2010, he has resided in Australia for the past 22 years.[1] Exhibit R1, 84. Mr Tufuga has been charged with approximately 60 offences since 2008. His Nationally Coordinated Criminal History Check dated 6 May 2019 discloses a conviction for armed robbery in 2016, several convictions for violent offences in 2017, as well as drug, dishonesty, conditional liberty, and vehicle/driving offences.[2] [2] Ibid, 31-33. On 30 May 2018 Mr Tufuga’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Act,[3] following convictions in the Melbourne County Court in December 2017. The convictions resulted in a total effective sentence of 32 months’ imprisonment.[4] This included a sentence of 15 months' imprisonment for one count of ‘Intentionally cause injury’ to his former girlfriend, who is the mother of their two children.[5][3] Ibid, 168-171.[4] Ibid, 349 [66].[5] Ibid, 348 [54(a)]. Mr Tufuga made representations to have the cancellation decision revoked, but on 20 April 2020, was notified that another delegate of the respondent declined to do so.[6][6] Ibid, 11-30; 252. On 26 April 2020 Mr Tufuga asked the Tribunal to review the non-revocation decision.[7] [7] Ibid, 4-9. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 13 July 2020.LEGISLATIVE FRAMEWORK Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment. The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides: (6) For the purposes of this section, a person does not pass the character test if: (a)the person has a substantial criminal record (as defined by subsection (7)); or … Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).

Evidence

Evidence Before The Court

It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.EVIDENCE The following were tendered into evidence:(a)Two volumes of documents lodged by the respondent collectively numbering 581 pages;[9](b)An 11-page statement by Mr Tufuga,[10] who gave oral evidence at the hearing and was cross-examined;(c)A one-page statement by Mr Felise Po’e dated 23 June 2020,[11] who gave oral evidence at the hearing and was cross-examined;(d)An undated one-page statement by Mr Tom Tufuga,[12] who gave oral evidence at the hearing and was cross-examined;(e)A two-page statement by Ms Tina Po’e dated 20 July (sic) 2020,[13] who gave oral evidence at the hearing and was cross-examined; (f)Eight statements from other family members and friends of Mr Tufuga, who were not called to give evidence, but whose statements were admitted without objection;[14](g)A Certificate of Completion issued to Mr Tufuga following attendance on a ‘Gambler’s Help Workshop’ at Metropolitan Remand Centre on 5 July 2017;[15](h)Medical records from the International Health and Medical Services (“IHMS”), referring to counselling and other consultations undertaken by Mr Tufuga;[16](i)Statement of results from Box Hill Institute, recording Mr Tufuga’s completion of six units of study in 2017 towards a Certificate II in Engineering;[17] and(j)A Maori cultural program developed by Mr Tufuga.[18] [9] Exhibit R1.[10] Exhibit A1.[11] Exhibit A2.[12] Exhibit A3.[13] Exhibit A4.[14] Exhibits A5 – A12.[15] Exhibit A13.[16] Exhibit A14. IHMS is contracted by the Commonwealth to provide primary and mental health care to people in immigration detention.[17] Exhibit A15.[18] Exhibit A16.National Criminal History and sentencing remarks Mr Tufuga does not dispute the accuracy of his criminal record,[19] the sentencing remarks from the County Court of Victoria dated 13 May 2016 (“2016 sentencing remarks”),[20] or the sentencing remarks from the County Court of Victoria dated 6 December 2017 (“2017 sentencing remarks”).[21][19] Exhibit R1, 31-33.[20] Ibid, 305-326.[21] Ibid, 327-353.Medical Evidence

Decision

Reasons for decision

Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Tufuga’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These outweigh the primary consideration ‘Best interests of minor children,’ which weighs moderately in his favour, and the other considerations of ‘Strength, nature and duration of ties,’ which weighs substantially in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs slightly in favour of revocation.DECISION It follows that the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Key aspects of the evidence from Mr Tufuga’s family members and friends follows:(a)Evidence of Mr Tufuga’s older brother (Tom Tufuga): The witness adopted his most recent statement as true and correct.[34] The Tribunal has noted an earlier statement in evidence.[35] The witness recalled speaking in support of his brother at the armed robbery trial in 2016, stating he was present ‘at every court case.’ The witness was asked why his current evidence should be accepted after similar claims at the armed robbery trial did not result in Mr Tufuga remaining law-abiding. He insisted Mr Tufuga had since ‘educated himself’ and was ‘completely changed from the man he’s been.’ The witness emphasised the importance of a father figure in the lives of Mr Tufuga’s two children, notwithstanding separation from the children’s mother. The witness claimed that the breakdown in Mr Tufuga’s relationship with his former girlfriend was a ‘big factor’ in his offending but was no longer an issue. It was put to the witness that the interests of Mr Tufuga’s children and strong family support were previously insufficient to prevent him offending, but the witness insisted employment and strong family support would make a difference. He said Mr Tufuga was ‘no risk at all’ of reoffending, because he was determined to be a better father. When asked if he was aware of Mr Tufuga ever being violent towards their parents, the witness said ‘every kid has moments with their parents,’ but claimed Mr Tufuga had only ever been verbally abusive during ‘heated arguments,’ but never physically violent.(b)Evidence of Mr Tufuga’s first cousin (Tina Po’e): The witness adopted her statement as true and correct.[36] She was aware of Mr Tufuga’s offending and his involvement in ‘physical altercations with some boys’ in prison. This had resulted in him being placed in isolation as a disciplinary measure. She claimed he was ‘trying to protect himself’ in a ‘volatile environment.’ The witness said Mr Tufuga had a ‘lot of internal conflict’ in the past and after the armed robbery conviction had no ‘positive influences.’ After his current lengthy period of imprisonment, however, he ‘has the tools to succeed.’ She said Mr Tufuga had engaged in ‘open, honest and transparent’ conversations with her and her family, leading them to conclude he had been rehabilitated. That was not the case in his first or second years of imprisonment, when the witness said Mr Tufuga was unwilling to change. She had seen significant and positive changes in him more recently, including an ‘increasing ability to express himself.’ She talked to Mr Tufuga daily since his transfer to immigration detention, during which he expressed remorse and understood ‘there are repercussions to his actions.’ The witness said she had a spare room Mr Tufuga could use if released and undertook to provide ‘food, necessities, positive influence,’ and other financial and practical support. The witness said she would assist in trying to help Mr Tufuga get work, naming an operations manager in a prominent Australian company who she claimed had offered him a ‘labourer’s job’ about a month ago. When asked the witness was unable to provide a telephone contact for the person who made that offer. During an adjournment, a Tribunal officer made enquiries with the company in question, who advised they were unaware of an operations manager of that name. Subsequent efforts to contact Ms Po’e by telephone during the hearing to elicit further details were unsuccessful.(c)Evidence of Mr Tufuga’s first cousin (Felise Po’e): The witness adopted his statement as true and correct.[37] He claimed to be ‘more of a brother’ to Mr Tufuga than a friend and claimed to have never seen him engage in any violent or abusive behaviour. When pressed, the witness said he was aware Mr Tufuga was ‘arrested from his missus, how he hit her, that’s out of character…that is shocking.’ When asked if he was aware of any other offending by Mr Tufuga, the witness stated: ‘I don’t know anything other than that crime.’ He confirmed this answer in response to subsequent questions from Mr Tufuga. The witness referred to past adverse influences in Mr Tufuga’s life who were ‘bad news.’ He now regretted not intervening or providing more guidance to Mr Tufuga at the time. He stated: ‘Joseph’s very loyal to people…He became loyal to them and loyalty can get you in trouble.’ He had last seen Mr Tufuga at Christmas and unlike previous occasions, when he said Mr Tufuga was ‘ignorant…different…didn’t speak to me properly,’ he was now back to his old self and willing to engage positively with others. (d)Evidence of other family members and friends: Eight additional supportive statements were tendered from Mr Tufuga’s family members and close friends.[38] These statements variously refer to Mr Tufuga as quiet, respectful, humble, supportive, generous, family-minded, a loving father, loyal to his friends, remorseful for the harm inflicted on his former partner, rehabilitated, lacking any meaningful support in New Zealand, and deserving of another chance to remain in Australia. A number offer emotional, financial and practical support to assist his reintegration into the Australian community if released.PRIMARY CONSIDERATIONS[34] Exhibit A3.[35] Exhibit R1, 129-130[36] Exhibit A4.[37] Exhibit A2.[38] Exhibits A5 – A12.Protection of the Australian community from criminal or other serious conduct