Tuimalatu and Minister for Home Affairs (Migration)

Case [2019] AATA 719

Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 (18 April 2019)

Division:GENERAL DIVISION

File Number:          2019/0492

Re:Taupati Tuimalatu

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris
Senior Member C. J. Furnell

Date:18 April 2019

Place:Melbourne

The Tribunal:

1.sets aside the decision made by a delegate of the Minister on 21 January 2019 refusing to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under section 501CA(4) of the Migration Act 1958; and

2.in substitution decides that the cancellation of the Applicant’s visa be revoked under section 501CA(4) of the Act.

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

Senior Member D. J. Morris   Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory cancellation of visa – consideration of Direction No. 79 – primary considerations – other considerations – any other matter – context of the offending and whether trend of increasing seriousness of violent offending – reviewable decision set aside and new decision substituted

Legislation

Migration Act 1958 (Cth), ss 499, 501, 501CA

Cases

DKXY and Minister for Home Affairs, Re [2018] AATA 3779
DKXY v Minister for Home Affairs [2019] FCA 495
DPP v Atelemo & Ors [2014] VCC 658
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
GWSC and Minister for Home Affairs, Re [2018] AATA 4313
Junior Taupati v The Queen [2016] VSCA 106
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Immigration and Multicultural Affairs v Ali (2002) 62 ALD 673
Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) FLR 441
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation under section 499 of the Migration Act 1958 (made 20 December 2018; commenced 28 February 2019)

Guideline - Persons Giving Expert and Opinion Evidence, Justice Duncan Kerr, President, Administrative Appeals Tribunal, issued 30 June 2015

REASONS FOR DECISION

Senior Member D. J. Morris
Senior Member C. J. Furnell

18 April 2019

  1. On 28 February 2018 Mr Taupati Tuimalatu’s (the Applicant) Class TY Subclass 444 Special Category (Temporary) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate of the Minister for Home Affairs (the Respondent) (the Minister) found that Mr Tuimalatu had a ‘substantial criminal record’ in the terms of the Act which meant that he did not pass the character test in the Act. He was also serving a sentence of imprisonment on a full-time basis at the time his visa was cancelled.

  2. Under section 501CA(3) of the Act, the Respondent gave Mr Tuimalatu written notice of the decision to cancel his visa and invited him to make representations about revocation of that decision.  Mr Tuimalatu made…

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Details
AGLC
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Case
[2019] AATA 719
Decision Date

CaseChat Overview and Summary

The applicant, Mr Tuimalatu, sought the revocation of the mandatory cancellation of his visa. The dispute arose because Mr Tuimalatu did not pass the character test due to a substantial criminal record, specifically convictions for "Recklessly cause serious injury" and "Affray (common law)" for which he received a sentence of four years and six months imprisonment. The matter was heard by D. J. Morris SM.

The court was required to determine whether there was another reason why the mandatory cancellation of Mr Tuimalatu's visa should be revoked, pursuant to section 501CA(4)(b) of the Migration Act 1958 (Cth). This involved considering the principles outlined in Direction No. 79, which distinguishes between "primary considerations" and "other considerations," with primary considerations generally carrying more weight. The court had to assess the applicant's criminal history, his ties to Australia, the impact on his family, and any other relevant matters.

The court reasoned that while Mr Tuimalatu had significant ties to Australia, including a long period of residence since childhood and a partner and young children, these were to be weighed against the seriousness of his offending. The offending, which involved violence and weapons, was considered a primary consideration. The court noted that the trend of increasing seriousness of violent offending was a relevant contextual factor. Although Mr Tuimalatu expressed remorse and had undertaken rehabilitation programs, the court found that the seriousness of the offences and the potential risk meant that the mandatory cancellation should not be revoked.

The court set aside the decision to revoke the mandatory cancellation of Mr Tuimalatu's visa and substituted a new decision to refuse to revoke the cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Paragraph 14(1) of the Direction sets out other considerations in relation to revocation requests. They are: ‘International non-refoulement obligations; Strength, nature and duration of ties; Impact on Australian business interests; Impact on victims; and Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).The Applicant’s background circumstances The Respondent noted that the Applicant is the father of five children from three different relationships. With his first partner, he has a daughter aged 20, who lives in Brisbane. With his second partner he has two sons, ‘M’ aged 12 and ‘D’ aged 10. They also live in Brisbane with their mother. With his third partner, Ms Atelemo, Mr Tuimalatu has two sons, ‘O’ aged 5, and ‘R’ aged 3. Ms Atelemo has two daughters from a previous relationship, ‘JD’ aged 18, and ‘LD’ aged 16. Evidence was given to the Tribunal that the Applicant performs a father figure role for Ms Atelemo’s daughters since she commenced her relationship with him in around 2010, and that in spite of his incarceration, his relationship with Ms Atelemo is strong and loving. The Respondent submitted that Mr Tuimalatu had a conviction for the offence of ‘Robbery with actual violence’ before the Brisbane District Court on 19 February 1999 (GD, p 16). In relation to this offence, the court recorded a conviction and imposed a 12 month term of imprisonment to be served by way of an intensive corrections order. On 8 October 1999 the same court convicted Mr Tuimalatu of breaching the intensive corrections order. The court revoked the order and ordered that the unexpired part of the prison sentence be served (of about six months). Mr Tuimalatu was aged 18 when this offence was committed. The Respondent submitted that Mr Tuimalatu was convicted of a further seven offences during the period between February 2002 to January 2009 relating to public nuisance offences, obstructing a police officer and contravening an order to provide identifying particulars. The Courts imposed fines in relation to each conviction. On 9 September 2009 at Brisbane Magistrates’ Court, Mr Tuimalatu was convicted of the offence of ‘Wilful Damage,’ and fined $400. On 5 October 2009 at the same court, Mr Tuimalatu was convicted of the offence of ‘Possessing dangerous drugs’ (9 counts), and fined $400. On 24 November 2009 he was convicted (again in the same court) of the offences of ‘Commit public nuisance’ (6 counts) and ‘Possessing dangerous drugs’ (9 counts), and was fined $600. Mr Tuimalatu gave evidence to the effect that 2009 marked the start of a change in approach, a change that saw him ceasing to take illicit drugs in around 2011 and, increasingly, accept his parental responsibilities. Mr Tuimalatu was charged with ‘Affray’ and ‘Recklessly cause serious injury’, arising from a dispute involving extended family members of his partner, which occurred on 2 October 2012. The circumstances of the offending were outlined in the sentencing remarks of Her Honour Judge Hampel (GD, p 24-70). Her Honour said (GD, p 26) that eight people in two cars drove to the house of a couple. At least two of the visitors were armed with knives and at least one with a baseball bat. A short time later, as the aggressors departed the residence, three people had been kicked, punched and stabbed.

Evidence

Evidence Before The Court

The Respondent submitted that the community would have some sympathy for the impact on Mr Tuimalatu’s family of his being required to return to New Zealand but this sympathy would be tempered by a recognition that the family have the option of moving to New Zealand together.Evidence of the Applicant Mr Tuimalatu gave evidence of being born in Samoa and moving to Mangere, a suburb of Auckland in New Zealand, when aged about three. He grew up there for around 10 years. His parents then moved to Queensland to provide better opportunities for their children. Mr Tuimalatu said he completed grade 12 at high school in Brisbane but, when pressed, said that in his final year of school he was ‘often absent’ and when he was attending classes he was not paying attention. He said that he didn’t think he sat the end of year examinations and, if he did, he did not believe he received any result. After leaving school he started work in retail and moved to factory work, then into the transport industry and then furniture removal. Mr Tuimalatu said he was employed by two large national removals companies, the first from 2000 to 2010 and the second from 2011 to 2013, undertaking general house moves and office removals. In 2012 he said he tried to start his own business. He said he purchased a truck and started work, initially subcontracting to others, but that the business faltered when the family dispute of October 2012 took place, soon after he bought his truck. When asked how the dispute started, Mr Tuimalatu said he did not know – it was a dispute between his in-laws and his partner’s younger siblings but that, as he had not long been living in Melbourne, he did not know all of the personalities involved. In terms of the events on 2 October 2012, the day of the major offending, Mr Tuimalatu said that he initially went in support of his partner, Ms Atelemo, to help her resolve family issues. When asked by Ms Samuta whether he had since reflected on the events of the day, Mr Tuimalatu responded ‘Every day of the last 3 and a half years, I play it over and over again. How I could have done more to defuse the situation and help the family not to fight each other.’ Mr Tuimalatu said he had moved to Melbourne in 2011 to be with Ms Atelemo, who he had met at a church event while she was residing in Brisbane. He told the Tribunal he had only met his partner’s family once or twice. He said that there was a dispute going on, including on long telephone conversations Ms Atelemo was having with family members, but he was only vaguely aware of it. Mr Tuimalatu was asked by Ms Samuta about the baseball bat referred to by the sentencing judge. He said he had the bat in his car. He said he took it as a support because he didn’t know the family members and ‘as a scare tactic’ because he was travelling with a number of females. Mr Tuimalatu was asked about rehabilitation programmes he has undertaken while in prison. He named some of the courses, and the Tribunal had evidence of those before it (GD, p 139-141). Mr Tuimalatu said he had found them ‘educative and insightful’.

Decision

Reasons for decision

Paragraph 6.1 of the Direction states, in part:6.1Objectives(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.…(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.(Emphasis added.) Relevantly, the Direction includes the following principles at paragraph 6.3 (principles which, in the Direction, are said to provide a framework within which decision-makers should approach their task):(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Ratio Decidendi

Legal Principle Established

The Tribunal had regard to a volume of documents collated by the Respondent (‘GD’ documents), together with Statements of Facts, Issues and Contentions submitted by both parties. The following documents were also taken into evidence: - written statement of the Applicant dated 2 April 2019 (Exhibit A1); - letter dated 30 January 2019 from Dr Raymond Chan, general practitioner, relating to the Applicant’s father (Exhibit A2); - letter dated 20 February 2019 from Dr Chan, relating to the Applicant’s mother (Exhibit A3); - Psychological report of Dr Jacqueline Yoxall dated 26 March 2019 (Exhibit A4);- undated written statement of the Applicant’s stepdaughter, ‘JD’ (Exhibit A5);- Psychological report by Dr Antoinette Butler Wilks relating to Ms Atelemo (Exhibit A6); - LSR – Level of Service Inventory - Revised relating to the Applicant dated 25 March 2019 (Exhibit R1); - Violence Risk Appraisal Guide (Exhibit R2).Migration history of the Applicant Mr Tuimalatu was born in Apia, Samoa, in August 1979. He migrated to New Zealand with his parents aged around four years. He became a New Zealand citizen. In February 1992 Mr Tuimalatu migrated to Australia with his parents and two siblings, a sister born in 1981 and a brother born in 1985. He has resided in Australia since 1992, departing on one occasion to Samoa for the funeral of a family member in 1997 for approximately two weeks (GD, p 150). Legislative framework Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of Mr Tuimalatu’s visa if he made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepts that Mr Tuimalatu made representations within the prescribed period. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…(ii)…; and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. The first limb of the mandatory cancellation power is satisfied. Mr Tuimalatu does not pass the character test. The Tribunal had before it (GD, p 15) a National Police Certificate dated 5 June 2018. Relevantly, the certificate records that on 29 April 2014 at the Melbourne County Court, Mr Tuimalatu was convicted of the offence of ‘Recklessly cause serious injury,’ and was sentenced to 4 years imprisonment; and the offence of ‘Affray (common law),’ and was sentenced for this offence to 12 months’ imprisonment, 6 months of the sentence concurrent. This meant he had to serve an aggregate prison sentence of 4 years and 6 months. Section 501(6) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’. A person has a substantial criminal record under section 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.