Tuivuya and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 954
•30 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 954
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/942
GENERAL ADMINISTRATIVE DIVISION ) Re Jeremaia Tuivuya Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date30 September 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
VISAEX – IMMIGRATION – on-shore visa cancellation on the grounds of substantial criminal record – applicant concedes he fails the character test on the grounds of substantial criminal record including robbery and theft of a motor vehicle – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant in returning to Fiji – found the applicant has a substantial criminal record and that he committed his most serious offence after being warned of the possibility of deportation and after his family reassuring the department and the AAT at a previous hearing that the applicant was a reformed character and that they would support him so that he would not re-offend – found that there was no reason to believe that his step-sister would be harmed if the applicant’s visa were cancelled – found that the best interests of the child Jamie are not outweighed by the other considerations – found that the applicant does have family support in Fiji and has acquired skills which should help him to re-establish in Fiji – the other considerations and the marginal weight of Jamie’s best interests do not outweigh the primary considerations – decision of the respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(2), 501(2)(a) and (b), 501(6), 501(6)(c)(i), 501(7)
Re Ali and Minister forImmigration and Multicultural and Indigenous Affairs [2005] AATA 10
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
30 September 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Jeremaia Tuivuya, who is aged 27, is a citizen of Fiji. He first came to Australia on 26 October 1988 on a visitor visa. He did not depart Australia at the expiration of that visa. On 24 July 2000 he was granted a subclass 833 special category visa. Between 1991 and 2002, he committed a number of very serious criminal offences including armed robbery, intentionally causing injury and theft of a motor vehicle (using a total of 11 aliases).
2. On 10 May 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Tuivuya’s special category visa on the ground that he failed the character test because of his substantial criminal record. That is the decision to be reviewed by the tribunal.
Background
3. Mr Tuivuya was born in Fiji on the 3 March 1978 and is aged 27. He is a citizen of Fiji. In 1987 his parents separated. He first arrived in Australia on a visitor visa on 26 October 1988 at the age of nine, accompanied by an uncle, with the intention of living in Australia permanently with his father, Eroni Tuivuya, who came to Australia in 1985, his mother and brother remaining in Fiji. He remained in Australia as an illegal non-citizen at the expiration of his visitor visa until he lodged an application for a change in circumstances – resident (innocent illegal 833) visa which was refused on 30 September 1998 (G p230). The decision was set aside by the AAT on 30 April 1999 (G p220) and on 24 July 2000 the applicant was granted a special category visa (G p210). He has had very little formal education. (On 18 June 1992, his father had applied for a protection visa, naming the applicant as a secondary applicant, but this was refused on 23 February 1993 and the decision affirmed by the Refugee Review Tribunal on 19 November 1994.)
4. Between 1991 and 1995, the applicant committed a number of criminal offences including intentionally causing serious injury, recklessly causing injury and possessing pistol/imitation, which were dealt with in the children’s court jurisdiction by way of youth attendance orders. Between 1996 and 2002 he had the following convictions recorded against him:
Court/Date
Offence
Sentence
Prahran Magistrates Court
29/8/1996
1. Assault police
2. Wilful damage/injure property
3. Resist arrest
4. Resist police
1. - 4. All charges convicted and fined aggregate $750. To pay $390 restitution.
Prahran Magistrates Court
28/10/1996
Variation re 29/8/1996
1. Assault police
2. Wilful damage/injure property
3. Resist police/resist arrest
4. Drunk in a public place
1. - 4. Variation. All fines cancelled, all charges community based order, to perform 38 hours unpaid community work.
Prahran Magistrates Court
12/12/1996
1. Fail to appear 5/8/1996
2. Unlicensed driving
3. Exceed PCA (2)
Failed to appear. Warrant to issue.
Prahran Magistrates Court
18/12/1996
1. Intentionally/recklessly cause injury (2)
2. Unlawful assault
3. Assault with weapon/instrument
Failed to appear. Warrant to issue.
Prahran Magistrates Court
27/2/1997
1. Breach of community based order
2. Unlawful assault
3. Fail to answer bail (2)
Breach re 28/10/1996:
1. Assault police
2. Wilful damage
3. Resist police/resist arrest
4. Drunk in public place
Breach re 12/12/1996:
1. Unlicensed driving
2. Exceed PCA (2)
3. Theft motor vehicle
4. Going equipped to steal/cheat
Nine months youth detention centre on each charge.
CBO – order cancelled. All charges convicted and fined – aggregate $750, default 8 days.
Re 12/12/1996 – 9 months youth detention centre on each concurrent and concurrent with above.
Melbourne County Court
6/9/1997
1. Armed robbery
2. Intentionally cause injury
1. 21 months imprisonment
2. 12 months imprisonment concurrent.
Total 21 months imprisonment, non-parole period 12 months.
Prahran Magistrates Court
11/9/1997
1. Intentionally or recklessly cause injury
2. Discharge missile/stone to injure
3. Wilfully damage property
4. Burglary
5. Theft
6. Drunk in a public place
1. - 6. Three months concurrent on each charge.
Prahran Magistrates Court
17/10/1997
Assault in company
Indicted, sentence suspended for 24 months.
Melbourne County Court
3/10/2002
1. Robbery
2. Theft of a motor vehicle (2)
1. Six years
2. 12 months on each count concurrent and concurrent with 1.
Total six years, non-parole period four years. License cancelled and disqualified for 12 months, property forfeited.
5. On 18 September 1997, Mr Tuivuya was notified by the then Department of Immigration and Multicultural Affairs (“DIMA”) that he had become liable for deportation after being convicted on 8 September 1997 in the Melbourne County Court of armed robbery and intentionally/recklessly causing injury (G p190). The notice of intention to deport was withdrawn, however, on 24 August 1998 (G p187).
6. On 2 December 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) wrote to the applicant, advising him that the Minister or his delegate was considering cancelling his special category visa because of his conviction in the Melbourne County Court on 3 October 2001 and taking into consideration his criminal history report from the Victoria Police and the judge’s sentencing remarks and inviting him to comment (G p199). Mr Tuivuya acknowledged receipt of this notification on 14 December 2004 (G p194). The applicant responded by letter dated 29 December 2004 (G p193), submitting that the absence of a normal childhood, his father being abusive and a lack of family support, rehabilitation and reconciliation had led him into criminal activity. However, since his conviction, he had successfully completed a number of rehabilitation courses including “Relapse prevention/Staying Straight” program, Youth Drug Treatment Program and Youth Matters of Substances, as well as educational courses (G pp151-183). He also included a letter of support from his mother, Mrs Merewalesi Leone, of 27 December 2004 (G p146). The applicant also completed a personal details form (G p129) in which he stated that he had a girlfriend, Melisa Elston, with whom he had commenced a relationship on 21 August 2003, and listing Jaime Elston aged five months as her child (G p128).
7. On 10 March 2005 a second notice of intention was forwarded to the applicant (G p196). This letter also requested that the he provide the department with further details of his relationship with the child Jaime Elston aged five months including how much contact he has with the child (G p196). By letter received by the department on 30 March 2005 (G p125), the applicant advised the department that he had been in a relationship with a Ms Melissa Elston for 18 months and that since his release in February 2005, he had learnt to become a “father figure” to Jaime Elston, that he had already bonded with her and that she was very fond of him and that “if I was ever to go back down the road of crime, I would lose my family forever and that is a risk I am not willing to take” (G p124). He also submitted that he wished to be a role model for his half-sister Luiciana Tuivuya, for whom he had taken on responsibilities, and had also rekindled his relationship with his father (G p125).
8. On 10 May 2005, a delegate of the respondent decided to cancel Mr Tuivuya’s special category visa because of his substantial criminal record and the continuing risk that he would re-offend, and having exercised his discretion under s 501(2) to cancel his visa (G p19). Mr Tuivuya was notified of the decision on 17 July 2005. On 22 July 2005, he lodged an application for a review of that decision by the tribunal.
9. Mr Tuivuya is currently in immigration detention at Baxter Immigration Detention Centre, South Australia, having been detained by the department on 17 July 2005.
10. At the hearing, the applicant represented himself with the assistance of his uncle, Isaia Nainoca, and the respondent was represented by Sharon Burnett, solicitor, Clayton Utz, lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence tendered by the parties at the hearing. The applicant gave oral evidence by way of video conference link-up from Baxter Detention Centre. Oral evidence in person was also given on his behalf by Merewalesi Solikoviti Naituivau, Melissa Elston, Isaia Tuivuya, Bill Hassan and Isaia Nainoca.
Relevant Law and Policy
11. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
12. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
15. In the present case, the applicant’s former solicitor conceded, when lodging the application with the tribunal, that the applicant fails the character test because of his substantial criminal record including a sentence of six years for robbery and theft of a motor vehicle (two counts). The only issue for the tribunal to determine in this case is, therefore, whether nevertheless, to exercise the discretion under s 501(2) not to cancel the applicant’s special category visa.
Evidence
16. Mr Tuivuya gave evidence by video conference link-up from Baxter Detention Centre and also adopted his written statement.
17. His evidence dealt mainly with the issue of rehabilitation and his family and personal relationships. He stated that he has been attending regular counselling sessions (with what frequency was not indicated) to better his ability to deal with difficult situations. Since his release from jail he had become a fiancée, “father” (actually fiancée of the child’s mother), big brother (actually half-brother) and employee. Now having people who depended on him, he refused to let any of them down, especially his fiancée, Melissa Elston, and “my daughter Jaime” who had motivated him to improve himself and his style of life. His deportation would be detrimental emotionally for Melissa and Jaime, and also financially. He had moved residence to the other side of town to be with them and had not attempted to resume contact with his old associates. While in jail he had attended as many rehabilitation classes as possible, including relapse prevention, anger management and drug rehabilitation programmes. He had not failed one of the regular drug tests. He said that he felt sincere remorse for any emotional trauma he had caused to others in the past and maintained that he is now no threat to the community. All his immediate family is in Australia and he has lived here since the age of 10.
18. Until now he had achieved nothing in Australia, but felt that because of the courses he had undertaken and his new surroundings and relationships, he is now changed. He had completed courses while in custody on commercial cooking, commercial cleaning, forklift driving, computers and bartending. He said his “soul [was] tired of incarceration” and he now had the goal of going back to school and planned to marry Melissa as soon as he could afford it. When asked if the relationship with Melissa was a stable one, he replied that he felt it was stable but “who knows what could happen in the future?”
19. He had obtained employment at the Colonial Hotel in Lonsdale Street, Melbourne, through Bill Hassan of Oztek Security in North Coburg. He had met Billy at touch football, and Billy had arranged for him to start work at the Colonial in mid-March 2005, performing general duties around the premises, including sometimes assisting with security. He worked there on Friday and Saturday nights and sometimes on Thursdays. He said that the hotel was paying Oztek Security, which in turn was paying him. That conflicted with Mr Hassan’s own evidence, in which he said that it was the hotel that was paying the applicant, not Oztek.
20. He had first met Melissa when she came to Fulham Correctional Centre to visit her brother who was also an inmate there. Melissa said she saw him about twice at Fulham, until she became pregnant, and after that they corresponded every few weeks.
21. Ms Elston said she was not in a relationship at the time Jaime was conceived but offered no information about the child’s paternity.
22. When he was released, he stayed with his father for two and a half to three weeks until she found a larger apartment. He then moved in with her for about four months before he was detained. During that period, he said, he was the provider: he paid the gas bills, helped with other household bills, paid for baby food and at least part of the rent, totalling about $350 per week. Melissa explained that the rent on the larger apartment was $200 per week, which she could not pay on her own. Since his detention, she had fallen behind in paying her bills. She admitted that she had been supporting herself and her daughter before the applicant moved in with them, and also that the gas and electricity bills were overdue by a few days before he was detained, but they had made a part payment. She said she had not notified Centrelink about the support she was receiving from the applicant, asserting that as he was not the biological father it was not relevant.
23. Ms Melissa Elston’s daughter Jaime is aged 13 months and was under 12 months at the time she had contact with the applicant. Nevertheless, both the applicant and Ms Elston said that she had formed a strong relationship with him and that he had become a father figure for her. Previously the only man she had any contact with was her grandfather, and she had been apprehensive in the presence of men. After he was detained she was unsettled for six weeks and cried a good deal. Ms Elston thought he would be a good role model for her daughter because he is now a different man and she had no reason to doubt that he would remain so. When asked if four months was an adequate test, she replied that so far he had not put a foot wrong.
24. In a letter to the Minister dated 29 December 2004, the applicant wrote, inter alia,
I now live in great fear of my personal safety and life, if in the event of returning to Fiji. This has become a very disturbing day-to-day factor in my life here in prison (G p191).
25. Asked at the hearing what he had meant by that, he explained that if he returned to Fiji he would be ashamed of his past, his lack of work, education and resources. If he returned to his village he would be an outcast because he had achieved nothing and would be alone in a strange country. His original home was on the small island of Beqa, off the south eastern side of Viti Levu. There he would be alone and separated from his family.
26. He stressed repeatedly and at length that he had matured, felt renewed and had a purpose in life, to make something of himself. Presumably through his courses, he has learned the vocabulary of reform and rehabilitation well, and discoursed at length on having goals, self-esteem, a sense of direction, feeling good about himself, a sense of responsibility, motivation, remorse and appreciating the rewards of hard work. His replies elaborated on these matters for five minutes or more at a time, often in response to completely unrelated questions, such as about where his brother lives.
27. It was pointed out to him that following his first warning about liability to deportation on 18 September 1997, he had written a letter to the Department (G p186) in which among other things he said that he felt sorry for what had happened and
I would like to offer my greatest sympathetic apology to all the people involved.
He asked for another chance to be allowed to remain permanently in Australia. That letter had been written in support of an application for an 833 subclass visa. His application had been rejected, but the tribunal had set aside the refusal on the basis of his self-improvement and his family network. He had then received the visa.
28. In response to a question about why he had reoffended despite his professed self-improvement and his family support, the applicant said that he had taken for granted what had been given to him. He had been offered an opportunity but lacked any help, sense of direction or sense of goal setting. He had stayed with his parents, had found employment, was involved in church activities and thought he was improving, but he became involved with the wrong crowd in Melbourne. He would not now reoffend, however, because he was a changed man who could take responsibility and on whom other people could depend. Previously he had not known where to look, he had no goal other than to work and was “a bit unhappy”. Now he was changed and mature and no longer wanted to live a life of self-destruction. He conceded, however, in response to a question from Ms Burnett, that he had family support at the time of the tribunal appeal also, from his mother, step-father and pastor. But, he said, he was 21 at that time and felt different. He was no longer a threat to the community.
29. Mr Isaia Nainoca, the applicant’s paternal uncle, is a pastor in the Pentecostal Church at Parramatta. He lodged a lengthy written statement (Exhibit A2) and gave oral evidence, the essence of which was that the applicant is a kind, friendly and caring person whose life had been disturbed because of the inference of drugs, alcohol, the wrong crowd, and being taken advantage of by others. Now he has a supportive family around him, his parents, brother, extended family and Melissa. He stressed that he perceives Jeremaia “to be a victim; a victim of divorced parents and an unfair system”. But now he is a rehabilitated, remorseful and reformed man and is in a stable relationship with Melissa Elston. He plays an important part in the lives of two children, his half-sister Luciana, aged seven and Melissa’s daughter, Jaime, aged 13 months. “We have no right to take that bond away”, he emphasises. Jeremia would have great difficulties in re-establishing himself in Fiji, where he has no family other than his maternal grandmother.
To send Jeremaia to Fiji is not customary. Only because Jeremaia’s parents are both still alive, and it is the interest of Jeremaia that he remains with his parents no matter what. To depend and live away from his own family is not acceptable in our custom. (Exhibit A2 p6)
30. Asked why he thought his family’s help would lead to a different result now when previously it had proved fruitless, he replied that the Fijian community is very close. His family would help to activate a support network. This time, he said:
we are assuming that he is going to change. He is older and has responsibilities. We will see to it that he changes.
Asked how the Fijian community could have a close relationship with the applicant when he had been in jail for most of the past 10 years, Mr Nainoca replied that he had visited Jeremaia once when he was in Fulham Correctional Centre, and his wife and children had twice. They had indicated that they were there for him. People faced different choices in life and he had simply made the wrong choices. The community should not punish a victim, and Jeremaia in his view is a victim.
31. The applicant’s mother Mrs Merewalesi Solikoviti Naituivau likewise maintained that her son had changed a great deal and matured. The largest change came with his acceptance of his girlfriend’s daughter, Jaime Elston, who he regards as his own. He would be an excellent role model for this child, as he would not want any child to go through that which he had experienced.
32. All his relatives are in Australia and she wants Jeremaia to come and live with her. She now lives alone following problems with her second husband and looks forward to having him with her. Her other son is married and his wife is expecting a baby. He is working and does not have much free time to spend with his mother.
33. Mrs Solikovuti Naituivau’s own mother is living in Fiji, in Suva, and the witness visits her once a year. She has been sick recently and is too old to have someone young like Jeremaia living with her (the grandmother’s age was not given). The applicant has adjusted to Australian life now and it would take him time to get back into the lifestyle of Fiji. It would be very hard for him. She is confident that he has changed and asks that he be given another chance. She conceded that at the tribunal hearing in 1999, she had also undertaken to assist with the applicant’s rehabilitation, but obviously without success. She replied that he was under the influence of alcohol when he committed the major offence for which he was later sentenced. When the sentencing Judge’s observation that he had not acted under the influence of alcohol was pointed out to her (G p176), the witness did not alter her position, adding only that:
The cops got him the next morning,
presumably meaning that by that time he was no longer displaying any effects of intoxication. The record suggests, however, that he was apprehended some time after the offence.
34. She contended that after completing his four-year sentence, he was not out in the community long enough to complete his rehabilitation. When it was pointed out to her that that was because he soon reoffended and was once again incarcerated, she replied that we all make mistakes. She conceded that he has some uncles and aunts in Fiji, including some on Beqa Island, but said that they have their own families and he would not be able to live with them. It would not be better for him to return to Fiji because he has adapted to the Australian way and would find it difficult to readapt to life in Fiji. While conceding that it might be hard for him to readjust to life in the Australian community as well, she replied that his family is here, he is happy here and knows what to do.
35. The applicant’s cousin Bulou (Fina) Nainoca said she knew all her cousins quite well, including the applicant, because they were all in the same age group. While she was from a stable family with parents who were good role models, the applicant had lived only with his father and did not have a stable background. She had made positive choices and taken the right direction, but he had chosen the wrong crowd, and indulged in drink and drugs in order to be accepted. He is now changed since his release from prison and has a proper set of goals. While a number of members of the applicant’s extended family still live in their home village in Fiji, he could not stay in the village because it is very backward and he would find it hard to adjust.
36. Mr Bill Hassan of Oztek Security adopted his character reference (Exhibit A5) in which he stated that in the time he had known the applicant as a work colleague and friend since about January or February 2005, he had always acted responsibly and honourably and had been very personable with everyone around him. He had said in the reference that he was shocked to learn that Mr Tuivuya had been detained, on the basis of what he had known at the time. Mr Hassan said he was now learning more about the applicant, but on the basis of his information at the time he had been shocked. He had known only that the applicant had been in trouble, and had helped him to obtain work at the Colonial Hotel. There he had been paid by the hotel, not by Oztek, he said, contradicting the applicant’s own evidence on that point.
37. The applicant’s brother Isaia Tuivuya had said he had seen a big difference in his brother since his latest release from prison. He had thought about making a major impact on his own life, despite not having been given “much chance to breathe” since his release. The witness’s wife is expecting their first child and he would like his brother to “stick around and be an uncle” to the new arrival. The witness said he would be a role model as the applicant looks up to him as a big brother and they communicate well as best friends.
38. When this witness first came to Australia in December 1994, he lived with the applicant in Melbourne until moving to Sydney in 1998. He conceded that as the applicant was offending at that time, he could not have had much impact as a role model, but explained that they were living with many young cousins and were getting up to mischief. The witness had tried to change him during that period. They had received help from the Pentecostal Church and the applicant had been involved in its community activities. He had not been attending church before the witness came from Fiji in 1994, but subsequently did attend from time to time. Nevertheless, he considered that the applicant would become a good citizen.
Application of the Law and Findings of Fact
39. As stated above, the applicant conceded prior to the hearing that he fails the character test by reason of s 501(6)(a) of the Act because he has a substantial criminal record, having received a term of imprisonment of six years for robbery and theft of a motor vehicle (two counts).
40. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Tuivuya’s special category visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
41. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
42. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (e) armed robbery (including robbery involving the use of an imitation weapon); (f) assault or any other form of violence against persons; and (n) any other crimes involving violence or the threat of violence. Paragraph 2.7(b) also states that decision-makers should have due regard to the Government’s view that crimes involving violence against defenceless persons (such as children) are especially repugnant to the whole community.
43. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. Paragraph 2.10(a), in particular, states that it is highly relevant to assessing the risk of recidivism where:
(a) a non-citizen commits a further offence having been warning previously about the risk of refusal or cancellation;
…
44. In this case, the applicant was warned on 18 September 1997 that he had become liable for deportation. Even though the warning was later rescinded, he should have been aware that any further re-offending would render him liable for consideration of the cancellation of his visa.
Protection of the Australian Community
45. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant commenced his criminal activities as a juvenile in 1991, with his crimes escalating in gravity over a 10 year period. On 8 September 1997, the applicant was convicted of armed robbery and intentionally or recklessly causing injury. Judge Shelton of the Melbourne County Court noted of the severity of that crime (G p13):
The offences you committed were particularly vicious and cowardly. … you did not feel sorry for the taxi driver, and your only regrets for what you had done to him were that it had got you into trouble.
46. When sentencing the applicant on 3 October 2001 for bank robbery and theft of a motor vehicle, Judge Neesham of the Melbourne County Court (G p183) commented that while no weapons were carried during the robbery, the aim was to strike sufficient terror into the staff and customers of the bank as to overcome any resistance to the robbery: “There were, it seems, upwards of 30 people in the bank, and that you succeeded in terrorising them is made abundantly clear by the statements of the various witnesses and from the victim impact statements in evidence.” In sentencing the applicant, his Honour also stated (G p176):
You, Tuivuya, were 22 years of age at the time of the robbery. You were the actual physical thief of the two cars required as transport to and from the bank. In addition to the part you played at the bank, after the robbery you collected the clothing worn by your fellow robbers and burned it, in the vain hope of escaping detention.
The applicant declined to assist the police in identifying his criminal confederates. There is no doubt that the applicant’s crimes must be regarded as very serious.
47. Next, the tribunal must consider the risk of recidivism, bearing in mind that the applicant’s crimes have progressively become more serious over time and the fact that the applicant continued to re-offend even after receiving a warning. That was noted by Neesham J on 3 October 2001 when he commented (G p176):
It appears from the psychological report … that you had problems with schooling and by your early ‘teens you were in trouble with the law and before the courts.
You have, it seems, experimented with drugs including heroin, but your principal problem was, and is, alcohol addiction of a serious nature. …
You have been given many chances to mend your ways, but continue to offend.
48. In the respondent’s statement of facts and contentions (Exhibit R1), the respondent submitted that there is a high risk of recidivism in light of his past conduct:
(a)On 18 September 1997 DIMIA wrote to Mr Tuivuya informing him that he was liable for deportation because of his convictions for armed robbery and intentionally or recklessly causing injury, on 8 September 1997. After this warning Mr Tuivuya continued to offend.
(b)On 30 September 1998 a delegate of the Minister refused Mr Tuivuya a visa on the basis of his criminal record. In reviewing the decision, the Tribunal found that Mr Tuivuya had taken positive steps to rehabilitation, had a support network available to him and there was a diminishing risk that he would re-offend (G5, paragraph 26). The Tribunal therefore overturned the refusal decision on 30 April 1999. Mr Tuivuya again re-offended, namely committing the robbery and theft of [a] motor vehicle for which he was incarcerated in 2001.
49. In his submissions to the department of 29 December 2004 (G p193), the applicant submitted regarding his risk of recidivism:
It is a known fact that my past was troubled and full of correctional custodial and suspended sentences. I now deeply regret such an irresponsible and unethical path, which is unacceptable to society.
I have since successfully completed [sic] number of rehabilitation and educational program [sic] in order to build my long lost self-esteem and self-confidence in the hope of becoming a law abiding citizen of Australia.
50. On 13 September 2005, he filed a submission with the tribunal which reiterated that “Because of my change of family situation the likelihood of me re-offending is unlikely as I understand the damage and heartache it would cause to my family, a risk I will not take”. He also said, “I have moved residence to the other side of town … and will not attempt to contact or become involved with old associates”.
51. Letters of support filed with the department by Anthony Charnley, the Catholic chaplain at Fulham Correctional Centre (G p150), and Peter Olsen, the Alcoholics Anonymous program facilitator at Fulham CC (G p147) also attested that the applicant had come to terms with his drug addiction problem, had no positive drug test results while in prison and had shown regret for his past offences. Before the hearing, a letter dated 11 August 2005 was filed with the tribunal from Tam Dinh, counsellor, South East Alcohol and Drug Services, concerning the applicant’s attendance for six counselling sessions for his alcohol related issues. She stated that the applicant had “demonstrated remorse over the mistakes of his past and saw himself as a more mature person now. He saw his past mistakes as a consequence of not caring about himself and his family which was no longer the case now. Furthermore, he showed an awareness of the wrongful nature of his past actions and that they would not bring lasting benefits. He was able to see hard work as the only ethical way to attain his goals”. As was noted above, the applicant’s mother, cousin, fiancée, brother and uncle also gave evidence to the effect that they believed the applicant is now a reformed and rehabilitated character. But on the other hand, as the applicant conceded, his mother, step-father and Pastor Lok of the Pentecostal Church also expressed support for him during the hearing in this tribunal in 1999 (G p212).
52. The tribunal at that hearing took into account the applicant’s subsequent efforts at rehabilitation while in custody and noted that:
There are some positive signs, an insight and awareness of his problems particularly with alcohol and a professed determination to abstain in the future, which I accept to be genuine. However, away from the controlled custodial environment will be the real test. For the present he has some way to go to overcome the telling examples of his character provided by his criminal history, one that involves, as mentioned earlier, repeated offences of violent behaviour” (G p213).
The Tribunal also noted that he had undertaken a number of self-improvement courses while in custody, that all screening tests for substance abuse had been negative and that he was given parole at the expiration of the minimum term of his sentence (G p214). Yet despite those indications of rehabilitation, and the support of his family and Church, and despite two clear warnings that he was running the risk of deportation, he went on to commit his most serious offences.
53. His fulsome expressions of good intentions and remorse, and the other factors advanced against the likelihood of recidivism, have all been put to the department or the tribunal before. As Deputy President Forrest wrote in 1999, his professed determination to reform appeared to be genuine, but “away from the controlled custodial environment will be the real test”. After he was granted a visa in July 2000, he was put to the test by being released into the community, but failed it within weeks. He has accumulated a criminal record spanning 10 years with offences of growing seriousness. As the Direction states in paragraph 2.10(a), the fact that a non-citizen commits a further offence after having been warned previously about the risk of cancellation points to a risk of recidivism. That risk I regard as quite significant.
54. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Ali and Minister forImmigration and Multicultural and Indigenous Affairs [2005] AATA 10 paragraphs 60-63; Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
55. The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity.
Expectations of the Australian Community
56. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
57. In my view the community has a right to expect that persons allowed to settle in Australia will not make themselves a burden on the criminal justice system and public purse, particularly so soon after settling in Australia. For several decades after World War II, studies consistently showed that immigration did not aggravate Australia’s crime problems. The migrant population overall had a lower crime rate than the Australian-born and recognition of that fact helped to maintain support for the immigration program. In recent times, however, the position has changed. It is now the case that the percentage of the population who were born abroad exerts a significant positive impact on crime rates, and that there is in fact “an important link between immigration, demography and crime” (it may be noted that Aboriginal origin, on the other hand, is not significantly correlated with criminal activity): PM Bodman, “Crime, Punishment and Deterrence in Australia: A Further Empirical Investigation” (1997) 24 International Journal of Social Economics pp 884, 895, 897. Failure to give adequate weight to community expectations in cases such as this one could tend to undermine public support for the immigration program.
58. At all events, this applicant has clearly let down community expectations by his repetitive and extended record of crime. Mr Nainoca submitted that as the applicant had started offending in Australia from a young age, it was up to the Australian community to tackle the problem and help him out. That argument implicitly rests on deterministic theories that see society as responsible for the deviant acts of offenders. That view no longer has wide academic support and, even if it did have, the community’s expectations, and indeed the entire criminal justice system, rest on the proposition that individuals are responsible for their own actions. In particular, the suggestion that Australia has an obligation to keep the applicant because he committed all his offences here would be unlikely to elicit a favourable community response.
The Best Interests of the Child
59. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
60. In this case, Mr Tuivuya submitted that there are two children whose interests should be considered, his half-sister Luciana Tuivuya, aged seven, and Jaime Elston (born 24 July 2004), the daughter of the applicant’s fiancée, Melissa Elston, who is aged approximately 13 months. I note that in the applicant’s submissions to the department and to the tribunal, he has provided no specific information about his relationship with his half-sister or the responsibilities that he has with regard to her. In fact he has been in jail for most of her life, precluding the growth of any strong relationship. Nor would he be a desirable role model in any event. Luciana is living in Australia with both her parents and there is no reason to think that she would be harmed if the applicant’s visa were cancelled.
61. With regard to the child Jaime, the applicant lived with Jaime and her mother between about mid-March 2005 and when he was taken into detention in July 2005, a period of four months. In a letter dated 17 December 2004 to the department (G p126), Ms Elston said:
Jeremaia and I have plans to build a life together and if there was any doubt in my mind that he was anything less than an honest and responsible man, I would not have brought him into the life of the most important thing in the world to me, my daughter.
62. In a letter (undated) filed with the tribunal before the hearing, Ms Elston said that the applicant had financially supported her daughter, and that since the applicant had been detained, her daughter had become “increasingly upset and unsettled … she is constantly looking and saying dad dad and going to the door, expecting him home, he is such a large part of her life, being there for all her milestones so far” (Exhibit A4).
63. In a letter to the department before the hearing, the applicant wrote,
Since my release, I have spent most of my time bonding with Jaime Elston and learning to be the ‘father-figure’ that she needs and deserves (G p124).
To say “most” of his time was an exaggeration. At the hearing he explained that he was working at the Colonial Hotel on Fridays and Saturday nights, and sometimes Thursdays, and also performed part-time work as a forklift driver, abattoir worker, storeman and as a labourer for a packing factory. In addition, he said he had weekly counselling appointments and met with his parole officer almost daily.
64. Jaime is currently aged 13 months and was under one year old when the applicant was living with her mother. It seems unlikely that any relationship developed during that period would be of such strength and durability that Jaime would be harmed if it were not resumed. The applicant pointed out that he had been financially supporting Jaime and generally contributing to household expenses before he was detained, but the evidence shows that the household bills were not being paid on time even before then. Further, Ms Elston had not informed Centrelink that she was receiving any financial support from the applicant.
65. Mr Nainoca argued that it would be wrong to “break up a young family”. That contention presupposes a considerable degree of stability in the relationship. When asked at the hearing if he thought it was stable, the applicant replied “I feel it is stable but who knows what could happen in the future?” Such a caveat is well placed. Social research shows that about 30 per cent of step families break up within two years, which is a four or five times higher rate than for first marriage families, and at the end of six years the break-up rate is substantially higher than for comparable first marriage families. Any children thus face a heightened likelihood of disruption. They are also at greater risk of developing behavioural problems. Most dangerous of all relationships for children is the single mother who moves from one de facto relationship to another involving a succession of non-biological, boyfriend “fathers” (B Maley, Family and Marriage in Australia (2001) pp150‑152).
66. In this case the parties intend to marry some time in the future, but even so, British and American studies show that serious abuse of children in step families is six times more likely than for children living with their married natural parents. Australian research shows that the risk is 10 times greater than in natural two-parent families (Maley, ibid). That is not to suggest that there is any evidence that the applicant would ever intentionally harm the child, but it does underline the problematical stability and prognosis for unions of this kind. Further, of course, where one party has a long criminal record and is at some risk of recidivism, the child could face renewed disruption if he were to re-offend. In my view the best interests of the child do not strongly weigh against visa cancellation in this case.
Other Considerations
67. Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision. The relevant ones in this case are those in paragraph 2.17 (a), (c), (d), (h) and (k). The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen and the fourth relates to any evidence of rehabilitation and any recent good conduct. Paragraph 2.17(k) states the decision-maker must consider “the fact that a non-citizen has been formally advised in the past by an officer of the Department … about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501”.
68. Mr Tuivuya’s parents separated when he was about eight and he lived with his father in Australia from 1988 until approximately 1990, when he drifted onto the streets. His evidence was that he had a troubled relationship with his father, but they have recently reconciled, and he has a good relationship with his step-mother and step-sister. His mother, Merewalesi Solikoviti, and brother, Isaia Tuivuya, came to Australia to visit twice in 1994. In 1995 she remained and in 1998 moved to Australia to live. Isaia immigrated in 1994. Both the applicant’s parents and their respective spouses and his brother all live in Australia, as do four uncles and aunts, and approximately 10 cousins. He has a grandmother and other relatives living in Fiji.
69. Letters of support were sent to the department from his mother Merewalesi Solikoviti (G p146), his father and step-mother Erori and De’ Anne Lesley Tuivuya (G p137), his cousins Alisi Bogi Nainoca (G p135), Bulou Vasomaca Fina Nainoca (G p141) and Salote Donnell (G p142), uncle and aunt Isaia Biu Nainoca and Mere Mata Nainoca (G p136), and his brother Isaia Tuivuya (G p139). These letters all attested to the fact that the applicant comes from a close-knit family and that the family would do whatever was necessary to keep him here in Australia. At the hearing Ms Elston said that if the applicant’s visa were cancelled, she thought she would proceed with the marriage. She added that she would prefer not to move to Fiji, but did not elaborate.
70. Before the hearing, letters of support and statutory declarations were filed by Tolli Grigoriadis, Bill Hassan, Lindsay Hart, Emosi Dauniika Vecenaua, Lance and Melissa Mataika, James Shaw, Sulueti Koroi, Lorraine DiCarluccio, Merewalesi Solikouti Naituivau, Isaia and Amy Tuivuya, Isaia Nainoca, Mere Nainoca, Fina Nainoca, Alesi Nainoca and Aporosa Nainoca. These letters all expressed concern for Mr Tuivuya if he were returned to Fiji and how it would impact on his family in Australia, and that “the whole family in Australia are willing to sacrifice to see changes in Jeremaia’s life”.
71. There may have been an element of exaggeration in some of the expressions of interdependency and support, however. The applicant’s brother Isaia Tuivuya said at the hearing that “sending him back to Fiji would be devastating for me”. The applicant himself, however, wrote in a letter to the department before the hearing that he had not seen his brother in years (G p125).
72. The applicant’s grandmother lives in Suva. His mother visits his grandmother once a year and would no doubt continue to do so if the applicant himself were living in Fiji. He also has aunts, uncles, cousins and other members of his extended family living in Fiji, many of them on his home island of Beqa.
73. His relationship with his Fiji family may be somewhat stronger than he indicated. From Judge Neesham’s sentencing remarks in 2001, it appears that the applicant sent almost half of his share of the bank robbery haul to family members in Fiji (G p181). That suggests a certain degree of cordiality in the relationship that could stand the applicant in good stead if he were to return to Fiji to live. Mr Nainoca stressed that people looked to each other for support in the Fijian community in Australia. There appears no reason why that would not also be true of the Fijian community in Fiji, especially among family members. Such support, along with the variety of useful skills that the applicant has learned in vocational courses while in prison, should help him to become re-established in Fijian life.
74. Further, as the respondent pointed out, he would be away from the influence of his former Melbourne associates, and that would also help to make Fiji a viable option for him.
75. For the reasons given above, no great weight can be ascribed to any signs of rehabilitation. The decisive test on this issue must always be the offender’s ability to maintain his rehabilitated status when away from the constraints of custody. Experience has shown that the applicant cannot.
76. I am satisfied that the other considerations and the marginal weight of the child’s best interest in this case in remaining with the applicant do not outweigh the primary considerations of community protection and expectations.
77. The decision under review should be affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 19 September 2005
Date of Decision 30 September 2005Representative for the Applicant Mr I Nainoca
Representative for the Respondent Ms S Burnett instructed by Ms C Petre, Clayton Utz solicitors
2