Tuimaseve and Minister for Immigration and Border Protection (Migration)
[2016] AATA 317
•17 May 2016
Tuimaseve and Minister for Immigration and Border Protection (Migration) [2016] AATA 317 (17 May 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1304
Re
David Tuimaseve
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member
Date 17 May 2016 Place Melbourne The Tribunal affirms the decision under review
[sgd]........................................................................
Dr Damien Cremean, Senior Member
IMMIGRATION AND BORDER PROTECTION—cancellation of visa—character test—history of violence—deception—decision affirmed
Legislation
Migration Act 1958 (Cth), sections 500(1)(ba), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4)
Cases
Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299
Secondary Materials
Ministerial Direction no. 65 — Migration Act 1958 — Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
17 May 2016
The Applicant, Mr David Tuimaseve, made an application to review the decision of the Minister for Immigration and Border Protection (the Respondent), made under section 501(3A) of the Migration Act1958 (Cth) (the Act) to refuse to revoke the mandatory cancellation of his Class TY, Subclass 444 Special Category (Temporary) visa.
The application was made under section 500(1)(ba) of the Act, which allows applications to be made to this Tribunal for review of decisions made under section 501(3A).
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record as defined by section 501(7).
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa where:
(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); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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.
For the purposes of the character test, by section 501(7)(c), a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant accepts that under these provisions, he does not pass the character test by reason of having been sentenced to a term of imprisonment of more than 12 months (as per section 501(7)(c)). He served the term of imprisonment on a full-time basis in a custodial institution for offences against the laws of the State of Victoria, pursuant to section 501(3A)(b) of the Act.
The issue then in this matter is whether a discretion should be exercised in the Applicant’s favour under section 501CA(4) of the Act, by which a cancellation decision made under section 501(3A) may be revoked if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
An invitation is referred to in section 501CA(3)(b) and is a requirement met in this case.
At the hearing, evidence on affirmation was given by the Applicant from the North West Point Immigration Detention Centre on Christmas Island via video link. He confirmed his three Witness Statements and agreed to the summary set out in the Preliminary Brief—Statement made by Informant (Informant’s summary) which led to his convictions in July 2014 and sentence of imprisonment.
Evidence on oath was given by a number of witnesses called in support of the Applicant, including his mother Fiaese Tuimaseve, his sister Sina Tuimaseve, a long-time friend Luke Wilson and another friend (living with her husband in the house of the Applicant’s parents), Salome Masoe-Koko. No witnesses were called by Ms Leith Helsdon of Sparke Helmore, who appeared on behalf of the Respondent.
It was upsetting for the Applicant to see these persons giving evidence on his behalf (in particular, he said he was embarrassed) and it was upsetting for them to have to do so. This was especially the case for the Applicant’s mother, who was quite unwell and has in the past depended very much on her son David for various kinds of assistance, including for medical or hospital visits.
Present in the hearing room were many members of the Applicant’s Samoan community, who attended to give Mr Tuimaseve their support.
It was obvious to me that the Applicant is well thought of in his community and is highly valued by those close to him, especially his parents and particularly by his mother.
All of the witnesses spoke highly of the Applicant as being of general good character (despite blemishes) and indicated that they would be prepared to stand by him should he be allowed to stay in Australia. There were letters of support lodged on the Applicant’s behalf which all spoke approvingly of him.
Mr Guy Gilbert of Counsel, who appeared on behalf of the Applicant, noted that his client Mr David Tuimaseve had lived in Australia since the age of 9. Therefore, if he was not allowed to stay in Australia, he would be removed from the country which he has grown up in since he was a small boy. Further, if the Applicant had to go and live somewhere else, perhaps New Zealand, there would be no one that he knew there. The Applicant has only been back to New Zealand once, in 2009, since he and his family moved to Australia. His client Mr Tuimaseve stated that to return to New Zealand permanently would be devastating. Some additional mention was made of the United Kingdom and Vancouver in Canada.
The effects of not being allowed to stay in Australia would thus be profound on the Applicant, as well as on his mother, father, sister and brother.
The Applicant also mentioned the possibility of a job in plastering being available for him should he be allowed back into the Australian community. Much emphasis was also placed on the valuable support available from his local Church. Many of Mr Tuimaseve’s community are members of the local Church and the Applicant has participated in Church activities over many years.
Many matters were addressed by Mr Gilbert in support of the Applicant and I do not wish to be taken as unduly compressing all of the very good points which he carefully made.
However, it would be fair to say that an important point made in the Applicant’s favour is that he has been frank and honest in admitting he does not pass the character test. He has thus made no attempt to diminish his responsibility. Another significant point is that he has been imprisoned only on the one occasion in question and is a young man devoted to his family and is resolute about not committing any further offences should he be released. My Gilbert submitted that therefore, Mr Tuimaseve learnt by his experience so that it may be said that imprisonment has had the effect on him it was intended to have. Mr Gilbert further submitted that the Applicant now knows that his conduct was wrong. Additionally, in his report dated 29 April 2016 Dr Cunningham, psychologist, reports favourably about the Applicant.
As I have indicated, although not the Applicant’s country of origin, Australia has been the Applicant’s country of residence for approximately 15 years. Mr Tuimaseve went to school in Australia and grew up in Australia in the context of a loving family residing here and has made friends here.
Therefore, there are many good things to be said about the Applicant and they were fairly put by his Counsel.
I agree that the discretion under section 501CA(4) is very broad, enabling many matters to rightfully be considered. In exercising that discretion, the Tribunal is to be guided by Ministerial Direction no. 65 (the Direction), promulgated on 23 December 2014. It would not be my view that the Direction exhaustively states all the matters of relevance that might be considered. It is to be noted that this date is after the date in July 2014 when the Applicant was convicted and sentenced at the Dandenong Magistrates’ Court in Victoria.
Paragraph 6.2(1) of the Direction sets out the following general guidance:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
Paragraph 6.3(1) of the Direction states:
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.
The Direction goes on to state in paragraph 6.3(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.
In paragraph 6.3(4) the Direction states:
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.
Also of relevance is paragraph 6.3(7) where the Direction states:
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.
The principles set out in paragraph 6.3 of the Direction must inform the relevant decision maker who must take into account the considerations in part C in determining whether the mandatory cancellation of a non-citizen’s visa should stand revoked (see paragraph 7(1)(b) of the Direction). Further, part C (paragraph 13(2)) of the Direction sets out that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
The Applicant finds himself at the North West Point Immigration Detention Centre on Christmas Island because he was removed there on 6 April 2016 from the Maribyrnong Immigration Detention Centre (MIDC). Despite requests made of the Respondent to return the Applicant to Melbourne to enable him to give evidence in person at his hearing, Mr Tuimaseve has remained on Christmas Island. I consider this to be undesirable. It is important on many occasions for the Tribunal to be in a position where an applicant can be seen and heard in person. It is after all the liberty of the person, if not the subject, which is involved.
Despite this, I am satisfied, on this occasion, I am properly placed to be able to assess the evidence of the Applicant.
The Applicant was removed to Christmas Island in dramatic circumstances. Three guards woke him early in the morning of 6 April at the MIDC and he was handcuffed. He was handcuffed even while on the plane and the handcuffs remained on him the whole of the journey to Christmas Island.
In giving his evidence, the Applicant stated that Christmas Island has not been a happy experience for him. Mr Tuimaseve stated that there is extremely high security with fences everywhere.
The Applicant further stated that the stories there are horrifying. He stated he heard of three Iranian nationals who hanged themselves and of another who escaped but was recaptured and put in a cell with no clothes on and hosed down in front of an air conditioner on full blast. He said it is a hellish place where everyone is depressed and horrified and no one knows what is happening.
I have no independent way of being able to make findings on these matters for I lack independent evidence to be able do so.
The Applicant was taken to the MIDC after completing a term of imprisonment. On 17 July 2014 he was convicted at the Dandenong Magistrates’ Court of the following offences: recklessly cause serious injury for which he was sentenced to 15 months imprisonment; recklessly cause injury for which he was sentenced to 10 months imprisonment with 5 months to be served concurrently; and act as a security guard without a licence for which he was fined $750.00.
Because the Applicant was convicted of the above offences in the Magistrates’ Court of Victoria, I am invited to find that the offences were not viewed as particularly serious ones. This seems to be a completely erroneous view. The offences were very serious causing significant injuries to individuals who gave no provocation. For it to be said the offences were not viewed as particularly serious ones is quite extraordinary and absurd.
The Applicant’s appearance in the Dandenong Magistrates’ Court on 17 July 2014 was not his first appearance on criminal charges involving violence. That is significant in my view.
On 29 February 2012 Mr Tuimaseve was convicted at the Melbourne Magistrates’ Court of the offences of intentionally cause injury and affray and was placed on a community corrections order for 12 months to perform 100 hours of community work.
On 19 April 2012 the Applicant was convicted at the Moorabbin Magistrates’ Court of recklessly cause injury and was placed on a further community corrections order for 12 months to perform 100 hours of community work.
It is to be noted that all of these convictions are recorded within a short time, spanning over a period of about two and a half years. Further, the Applicant’s convictions seem to be of an escalating nature, increasing in severity from injury to serious injury.
The above offences are of course all offences against the person. However, the offence of acting as a security guard without a licence is one of clear deception by its very nature. Further, the offence of affray is an offence calculated to cause public alarm.
Given the Applicant’s age, this is an exceedingly bad record for someone still as young as Mr Tuimaseve. His convictions for the offences were all recorded from age 20 to age 22. The convictions recorded in 2014 are particularly troubling based on what appears in the Informant’s summary.
On 18 January 2014 the Applicant falsely signed on as a security guard at a nightclub in Warragul. Without provocation, but referring to an encounter some months before, he approached two young men in the dance floor area and struck each of them. Only one punch each was delivered. Both men were left unconscious on the ground and seriously injured. Amazingly, the Applicant in cross-examination said he did not hit them hard.
That is something I do not accept at all. The Applicant is understating his culpability. Following the incident on 18 January 2014, both men were hospitalised, one with injuries including a fractured cheekbone and eye socket and the other with injuries including bruising, swelling and loose teeth. The Applicant fled the scene and it took the police quite some time to locate Mr Tuimaseve.
Considering his prior convictions, it is no wonder that the Applicant was sentenced to terms of imprisonment. His explanation for his conduct in justification was that: I thought they were going to do something shifty to me. He said he felt like he was being cornered. Mr Tuimaseve also stated that he responded badly to a situation but it was the best thing he could do at the time.
This rationalisation is not tenable. The Informant’s summary seems to make it very clear that the Applicant was the aggressor at all times. The Applicant again seems to be understating his culpability. Individuals looking shifty to him is no excuse for his conduct or for the serious injuries he inflicted on them.
In any event, it seems clear from the Applicant’s history that he has an anger issue. I note the report of Dr Cunningham which states that Mr Tuimaseve has an Adjustment Disorder. He indicates that the Applicant is unlikely to reoffend.
However, the Applicant seems to have a history of anger that he cannot manage, considering the number and frequency of his convictions. It is true that those convictions began when the Applicant was a young offender but they have continued into Mr Tuimaseve’s adulthood. I reject any notion that I should treat him, in effect, as a child or young offender as absurd.
Mr Tuimaseve has also demonstrated dishonesty by pretending to be a licensed security guard. He did this in a public venue. Previously he caused public alarm as indicated by his conviction for affray.
Additionally, the Applicant has attended two anger management courses, further making it clear that Mr Tuimaseve has an anger issue. The first course was six months in duration. Mr Tuimaseve attended the second course voluntarily. The Applicant rated one of the courses very highly, the other course not as highly.
However, an anger issue of this kind, which involved lashing out at two young men in a nightclub leaving them battered, bruised and unconscious by only two punches, is a matter of very great concern. Especially considering what may legitimately be expected of non-citizens at large in the Australian community. However, the Applicant says that he is extremely sorry for [his] actions and the damage [he has] caused. This may well be the case, but does not satisfactorily explain his fleeing the scene instead of staying there to offer help to those he had injured.
The offences of January 2014 occurred not very long ago and they in turn occurred not long after the Applicant’s two previous court appearances. In his case, society’s admonition expressed in the two community correction orders made against Mr Tuimaseve was of no effect. The impression I gained from the Applicant when giving his evidence was that those orders were not viewed very seriously by him and were seen as trivial. This may be because the Applicant was trying to impress some of the members in his community who were present in the hearing room.
Be that as it may, those orders did not deter him from shortly afterwards engaging in other unlawful violent and dishonest conduct.
When he was imprisoned, the Applicant indicated that he was not seriously bothered by violence because of his physical size. He stated that it was only his size that protected him in prison. Indeed, other prisoners tended to seek out his company. However, the Applicant did state that when he was in prison he was honestly scared.
I am quite doubtful about why Mr Tuimaseve would say he was scared if he was so obviously protected by his physical size. I think that the Applicant was trying to impress the Tribunal or others in his community at the hearing, with respect to how hard imprisonment has been for him. I consider he was not being frank in this.
Having now completed his prison term, and having done not one but two anger management courses, one could expect that anger would no longer be the Applicant’s reaction to life’s vicissitudes. Mr Tuimaseve said that he is sure that he will be released from prison a much better person. He also stated that he is very confident he will never commit another criminal offence of any nature. He wants to devote himself to looking after his parents and to be a role model to the kids in his community. He says he now knows he is responsible for his own actions.
Regrettably, I consider that managing his anger is still an issue for Mr Tuimaseve. I have formed this view despite the Applicant stating that he has learned heaps of strategies for dealing with situations where I might have been aggressive in the past. He referred to the example of his brother who he says has always had more of a temper than [him].
Furthermore, there have been three separate episodes since the Applicant has been in custody at the MIDC and on Christmas Island which lead me to consider that the Applicant still has difficulty containing his anger. These are all mentioned in the Applicant’s own Statements.
The first episode occurred at the MIDC. Mr Tuimaseve had requested to see a psychologist. The psychologist apparently told him that he was wasting his time in fighting to stay in Australia. In his evidence, Mr Tuimaseve stated that at the time he had not been sleeping and was exhausted. His temper flared and he got angry with her. He said she did not seem qualified. A yelling match ensued where he was told he was on his last warning. He told her to let him out and then he left. Mr Tuimaseve described the episode as pretty bad.
The first episode does not seem to be consistent with someone who no longer has an anger issue. It seems to be an example of someone who is quite volatile.
The second episode occurred in the early hours on 6 April, also at the MIDC. Three officers came to Mr Tuimaseve’s room to remove him. They demanded he get up. The Applicant questioned what was happening and then reached for his phone to contact a lawyer. The officers tried to remove the phone from him because he would not hand it over and it ended up broken and in pieces. He was then placed in handcuffs and taken away.
The third episode occurred on Christmas Island itself. Mr Tuimaseve was finally able to phone home to his parents to let them know where he was and how he was doing. He had been denied that opportunity the evening before on the day he arrived. When told then that he could make his call in the morning, Mr Tuimaseve stated that he argued with the officer. It should be noted that in this instance the Applicant was arguing with someone in authority charged with his custody. Mr Tuimaseve stated that after being denied the call I was honestly pissed off with the officers.
The Applicant was asked questions about this by Ms Helsdon but his answers were not very forthcoming. He did not want to explain how he may have shown his anger, if he did at all.
I think that this is an alarming attitude to have to lawful authority. Mr Tuimaseve was denied the right to make a call and got pissed off with the officers doing their job in difficult circumstances.
The attitude displayed by the Applicant in this instance was not an attitude of co-operation. Nor was it an attitude of co-operation to resist handing over his phone. It was an attitude of defiance. Further, it was not co-operative to get angry with a psychologist to the point of being placed on last warning.
The episodes which occurred while the Applicant was in custody are not indicative of someone who will co-operate with authority and who will stay out of trouble with authority in the Australian community if released.
In my view, the Applicant still has a serious anger management issue. Even in custody, he is prepared to argue with authority. One would think that, of all times, a person in custody would behave with compliance and submission. This has not been the case with the Applicant.
There are many good things which are able to be said about the Applicant and I have indicated those above. I do not doubt that in his present predicament on Christmas Island, Mr Tuimaseve does fully intend to lead a law-abiding life if he is freed. I also do not doubt that if freed, the Applicant does intend to devote himself to looking after his parents and counselling the young, especially in his community.
As regards to his parents who are unwell, I note that the Applicant’s sister (Sina) resides at home with them and helps out financially and in other ways as well. A point raised by the Applicant is that she has reached a stage in life where she should now be able to leave home and look at setting up her own household and starting a family. I am unable to comment meaningfully on this. Anything of that nature is a personal matter.
In his present predicament, I am clear that the Applicant does regret his actions of the past and that he presently has every intention not to repeat those actions.
I also appreciate that if he is not freed, he will not be able to see his nieces in Australia. However, he has no children himself and I note that for some or much of his young nieces’ lives, it would seem that he has been imprisoned and not in direct contact with them in any event.
This is only one side of the ledger. I am obliged to have regard to the principles in the Direction as I have pointed out.
It is understandable beyond question that the Direction should require the Tribunal to have as a primary consideration the protection of the Australian community from criminal or other serious conduct. In that regard, an important point is the risk of criminal offending or other conduct being repeated and whether there is an unacceptable risk of that occurring. Even strong countervailing considerations may be insufficient to justify not cancelling a visa, pursuant to paragraph 6.3(4) of the Direction.
There are countervailing considerations which are able to be put in the Applicant’s favour. I have indicated these as above. They include his having grown up in Australia from the age of 9, having served his time, having a devoted and concerned family and community group, having parents who are unwell, his involvement in his Church and the difficulties he will face if he is forced to go and live somewhere else. I highlight these considerations, but obviously there are others. They are set out in the Applicant’s written submissions, in which the Direction is addressed in appropriate detail. I have duly considered those submissions and the various detailed points made but do not find it necessary on this occasion, given also time limits involved, to deal with each specifically.
I am of the view that the countervailing considerations I have mentioned are not sufficient to justify not cancelling the Applicant’s visa. In saying this, I fully appreciate the effect on the Applicant and his family of him not having his visa cancellation revoked.
Plainly, the Applicant has an appalling criminal record characterised by serious violence. He has hit and badly injured innocent people on the completely ridiculous basis of thinking these persons were going to do something shifty to him. Having struck them heavily and having hurt them, he fled the scene, not caring about the injuries he had inflicted.
This occurred at a time shortly after having served not one but two community correction orders, also for offences of violence and affray, the latter, as I have noted, being conduct causing or tending to cause public alarm.
Mr Tuimaseve has also pretended to be a licensed security guard. Even if this was to obtain money to pay for medication for his father, it is still dishonesty at a public venue in a public place.
This is a record which would be of concern to any peace loving community. Paragraphs 6.2(1) and 6.3(1) of the Direction emphasise that Australians have an expectation that non-citizens will conduct themselves in a law-abiding manner.
The Australian community could rightly feel at risk if the Applicant was now freely able to walk the streets even if he presently has the best intentions of not being involved in criminal activity again.
However, the risk of the Applicant engaging in dangerous and anti-social conduct is made all the clearer by his conduct while at the MIDC and on Christmas Island. Even in custody, Mr Tuimaseve has been challenging authority. He got angry with the psychologist and stated that the scene was pretty bad. He also resisted handing over his phone which ended up broken and he was honestly pissed off with the officers over the phone call incident.
Moreover, the Applicant is a man who is big in physical size and admits he has a temper but not as bad as his brother’s. It is no wonder the authorities took full precautions when conveying him by plane to Christmas Island.
The harm the Applicant could cause if his offending conduct in the nightclub was repeated is very serious indeed and this clearly impacts on whether he is an unacceptable risk or not.
I am not ignoring what I perceive to be the Applicant’s clear tendency to minimise the offending which sent him to jail, particularly when he said in evidence that he did not hit his victims hard. If he did not hit them hard, there is an even greater worry considering the extent of their injuries. What could happen if he did hit a person hard is something very troubling.
Pursuant to the Direction, I am quite satisfied that the Applicant is an unacceptable risk in terms of future harm. This is demonstrated in various ways as set out above, but in particular by his conduct even in custody post-imprisonment. He is a physically big man with a temper who has shown he will resist authority or challenge it. He is defiant. Taken together with his convictions for violence, and for public deception and for causing public alarm, the primary consideration of protecting the Australian community from criminal or other serious conduct can only be achieved if his visa cancellation is not revoked.
The risk of the Applicant re-offending is so high that in my view, it is plainly in the public good that his visa cancellation not be revoked. See comments in Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299. The risk of the Applicant re-offending in the Australian community is quite unacceptable.
In all the circumstances, and applying the Direction, I am quite satisfied that the decision under review should not be set aside but must be affirmed.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member [sgd].......................................................
Associate
Dated 17 May 2016
Date of hearing 10 May 2016 Counsel for the Applicant Mr Guy Gilbert Advocate for the Applicant Ms Hannah Dickinson Solicitors for the Applicant Clothier Anderson & Associates Advocate for the Respondent Ms Leith Helsdon Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Remedies
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