Tumanako and Minister for Immigration and Multicultural Affairs
[2006] AATA 848
•4 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1037
GENERAL ADMINISTRATIVE DIVISION ) Re
Ray Tumanako
Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date4 October 2006
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation on character grounds – substantial criminal record – applicant imprisoned for murder – protection and expectations of the Australian community weigh against other considerations – low to moderate risk that the applicant will re-offend – interests of grandchildren do not outweigh visa cancellation – decision affirmed.
Migration Act 1958 ss 501(1), 501(2)
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
4 October 2006 Professor GD Walker, Deputy President Summary
1. The applicant, Ray Tumanako, aged 59, who is a citizen of New Zealand, first arrived in Australia (according to departmental records) on 30 July 1975. On 1 September 1994, he was granted a subclass 444 special category visa under the Migration Reform (Transitional Provisions) Regulations. On that day he was also automatically granted an absorbed person visa by operation of law.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided to cancel Mr Tumanako’s special category visa on the ground that he does not pass the character test because of his substantial criminal record including murder. That is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant did not dispute that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having received on 11 May 1990 a sentence of life imprisonment for murder, which, on 2 March 2001, was redetermined to a sentence of 20 years imprisonment. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.
Background
4. Mr Tumanako was born in Wairoa, New Zealand, on 5 May 1947 and is aged 59. He is a citizen of New Zealand. Departmental records indicate that he first arrived in Australia on 30 July 1975 as a New Zealand citizen under the Trans-Tasman agreement in effect at that time. (The applicant told departmental officers that he first arrived in 1969 and stayed for 15 months before returning to New Zealand. He returned to Australia again in 1970, staying for approximately one year before returning to New Zealand. The department, however, has no record of these movements.) On 1 September 1994, he was granted a subclass 444 special category visa by operation of law under the Migration Reform Act. Mr Tumanako also holds an absorbed persons visa granted on 1 September 1994 by operation of s 34(2) of the Migration Act 1958 (“the Act”).
5. Between 1977 and 1990, Mr Tumanako was convicted of the following offences (G p38):
Court
Date
Charge
Result
Campsie Petty Sessions
18/7/1977
1. Drive manner dangerous.
2. Unlicensed driver.
1. Fined $200 disqualified 6 months.
2. Fined $40.
Liverpool Petty Sessions
19/10/1997
1. PCA.
2. Disqualified driver.
1. Fined $100 disqualified 18 months.
2. Fined $100 disqualified 6 months.
Sydney District Court
29/10/1982
Bill found for 1. Accessory after fact of robbery being armed.
1. 6 years HL non parole to expire 28/10/1984 (appealed).
Court of Criminal Appeal
17/12/1982
Considered application for time spent whilst on appeal to count against conviction.
Ordered that notice of abandonment be noted. The whole of time served is to count.
Waverley Petty Sessions
26/9/1984
1. Negligent driving.
2. Unlicensed driver.
1. and 2. On each charge, fined $100.
Central Criminal Court
11/5/1990
1. Murder.
Life imprisonment (appealed).
Court of Criminal Appeal
7/10/1992
Application for leave to appeal against conviction and severity of sentence.
Order that the appeal be dismissed, whole time served to count.
Central Criminal Court
2/3/2001
Murder – redetermination of sentence.
Imprisonment 20 years, non-parole period 14 years commencing 14/2/1989.
6. Mr Tumanako also had two convictions recorded against him while living in New Zealand:
Lower Hutt Magistrates Court 15/2/1966 Assault female
Fined $100, probation 1 year.Upper Hutt Magistrates Court 10/3/1966 Assault female
Fined $120, probation extended 1 year
7. During his term in prison, Mr Tumanako has had the following incidents recorded against him:
Incident Reported Hearing Offence
15/3/1990 15/3/1990 3/4/1990 Use/possession of drugs
VJS – proven but dismissed15/3/1990 15/3/1990 3/4/1990 Use/possession of drugs
Major charge sent to VJ for hearing3/5/1995 3/5/1995 8/5/1995 Unauthorised property
7 days supervision – off other amenities
11/2/1996 11/2/1996 19/2/1996 Abusive language
Supervision – prisoner given remand and caution
31/1/1997 7/7/1998 15/2/1998 Drugs in urine
28 days supervision – off contact visits
7/7/1998 7/7/1998 8/7/1998 Fail to comply supervision
7 days off buy-ups
23/2/2003 23/2/2003 23/2/2003 Deliver received unauthorised article
Reprimand and caution
17/8/2003 17/8/2003 6/9/2003 Fail urine test
Dismissed no evidence
8. Mr Tumanako is currently an inmate of the John Morony Correctional Centre, Windsor, New South Wales. His sentence is due to expire on 13 February 2009. His earliest possible release date on parole was 13 February 2003 (G p32).
9. On 13 March 2003, the then Minister for Immigration and Multicultural and Indigenous Affairs, Mr Phillip Ruddock, personally made a decision cancelling Mr Tumanako’s subclass 444 transitional visa. On 20 March 2003, Mr Tumanako acknowledged receipt of the decision and attachments including Notice of Removal and Maintenance Costs. The decision letter handed to Mr Tumanako advised him that he would be removed from Australia immediately upon completion of his term of imprisonment. As from the date of the decision to cancel his special category visa, he was granted a bridging visa to maintain his lawful status in Australia while he completed his period of imprisonment and any period subject to a periodic release order.
10. By letter dated 21 November 2005 (G p42), an officer of the then Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Tumanako that as the department considers he is the holder of an absorbed person visa by operation of law, the previous cancellation of his visa was “legally invalid because it purported to cancel a visa that he did not hold, that is, a ‘special category visa’ (G p43). However, the purpose of the letter was to notify him the Minister or his delegate was now considering cancelling his absorbed person visa which he was granted by operation of law on 1 September 1994, on the ground that he does not pass the character test because of his substantial criminal record and taking into account his criminal history, record of conviction sentences and appeals from the Department of Corrective Services, the Judge’s sentencing remarks of 11 May 1990, the Judge’s sentencing remarks made on 2 March 2001, the Department of Corrective Services Pre-Release Report dated 14 November 2002 and all documents provided by the applicant in response to the notice of intention to cancel his visa issued to him on 2 August 2002 and inviting him to comment within 21 days. Mr Tumanako acknowledged receipt of this letter on 22 November 2005 (G p61).
11. In response to the notice of intention, Mr Tumanako provided to the department reports by the Serious Offenders’ Review Board, letters from correctional centre staff relating to his conduct and progress, statements by a psychiatrist and a psychotherapist, character references, and certificates of achievement for courses undertaken whilst in prison (G p3).
12. On 19 June 2006, a delegate of the respondent decided to cancel Mr Tumanako’s absorbed persons visa because of his substantial criminal record (whilst noting his low risk of reoffending) and having exercised his discretion under s 501(2) to cancel his visa, concluding that the seriousness of his offences outweighed all other considerations (G p27). Mr Tumanako was personally served with the decision on 1 August 2006. On 3 August 2006 the applicant lodged an application for a review of that decision by the tribunal.
13. At the hearing, the applicant was represented by Christopher Levingston, solicitor, Christopher Levingston & Associates, and the respondent was represented by Tigiilagi Eteuati, solicitor, Clayton Utz lawyers, Canberra. 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 submitted by the parties at the hearing. Oral evidence in person was given by Mr Tumanako, Mr Kip Sly and Mr Debden Tumanako.
Relevant Law and Policy
14. 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”.
15. 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; …
16. 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.
17. 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.
Evidence at the hearing
18. At the hearing the applicant adopted as his evidence in chief some handwritten statements dated 30 June 2005, 24 December 2005, and a third that was undated (Exhibit A4). All his evidence, written and oral, tended to be rambling, discursive and repetitive, a characteristic that has been noted by probation officers and psychologists (G pp11, 98). One psychologist with whom he had significant contact indicated that the applicant appeared to lack the ability to follow certain lines of reasoning, a tendency that might indicate an intellectual disability that could impair the therapeutic process (G p99). That possibility does not appear to have been explored further.
19. In spite of that, the applicant effectively made the outlines of his case clear. All his family, he said, are in New South Wales and he has no surviving family in New Zealand. He has had an unblemished record on the work release program since mid 2003 and has (now) completed about 90 weekend leaves without incident. After successfully completing a number of casual jobs on work release, he became a continuing employee at Superior Rubber & Plastics Pty Ltd at Wetherill Park, where he has risen from the rank of factory worker to that of production supervisor, and has been offered appointment as production manager on his release. He is remorseful for his crime but has the support of his family and of his psychotherapist, Ms Amanda Frost. He has become involved with the Christian church, and if released would receive the support of his strongly Christian family in making a new life. He wishes more than anything else to be reunited with his daughter and grandchildren.
20. As regards the murder of which he was convicted, he said he pleaded not guilty on the ground of diminished responsibility, as the crime was not premeditated. On St. Valentine’s Day 1989 he had formed the idea of presenting some flowers to his ex-de facto at the kindergarten where she would be calling to collect her daughter. He bought the flowers and took them with him in his van, but on arriving found her in the company of another man. He felt upset, confused and rejected. He began “spinning out” and felt “this strange numb feeling that I’ve never experienced, everything sort of went hazy”. He said he did not know what happened after that, but that the next minute she was on the ground and he had blood on his hands and clothes and a knife in his hand.
21. After leaving the scene he telephoned 000 and told the police that he thought he had killed his girl and wanted to hand himself in. He gave his name, but then hung up. He remained of the intention to surrender to the police, but they thought he was avoiding apprehension and he was arrested shortly after that. It appears that at the time he was wearing a black t-shirt with a gold design on it. The police, he said, wrongly claimed that he had turned the t-shirt inside out in order to avoid identification and apprehension. He continued that when he was able to obtain the necessary funds, his lawyer would be seeking to re-open the case by way of a judicial inquiry in order to look into a number of facts and circumstances about the investigation. “For legal reasons I do not wish to go into further details”, he added.
22. After describing his attempt to conduct a defence of diminished responsibility, he stated that after working with professional counsellors, psychologists, psychiatrists and psychotherapists over the years within the correctional system, he had been given to understand that he had been “transfixed” into a state of extreme rage and shock and did not actually know what he was doing or what had taken place during the crucial few seconds.
23. While in custody he had striven to become a better person so as to be able integrate within the community and to give something back to society by mentoring troubled youth through the Police Boys’ Clubs and other organisations. He particularly wanted to steer young people away from the destructive influence of drugs.
24. He had successfully completed three 14 – week anger management programs with a certificate of commendation, as well as other programs on drugs and alcohol, understanding relationships, and communication skills. He believes that if released into the Australian community he would be able to deal with any negative situations that might arise through the support of his family and his involvement with the church. His commitment to community youth work was not a recent phenomenon, as he had written and illustrated a book for the children of prisoners that was published by the New South Wales government and launched in 1998 at Long Bay Correctional Centre (G pp316-333). He asked to be allowed on compassionate grounds to remain with his family in Australia.
25. In cross-examination he said among other things that he had always maintained that he did not know what happened during the actual homicide. He had felt confused and rejected and had not decided ahead of time to kill the deceased. Asked about his call for a judicial inquiry over the t-shirt allegation and other matters, he replied that he was not qualified to say what might happen as a result of such an investigation.
26. When he first became eligible for parole in 2003, he told the parole authority that he could not handle the prospect of release at that time. He “thought it was too hectic out there” that he could not handle the open spaces outside the walls because for the last 12 years he had “lived in a matchbox”. When at large he had felt as if the whole world was looking at him. It had taken him a while to adjust to being in the outside world.
27. Asked whether a new relationship with a woman might create emotional pressures leading him to re-offend, he did not reply, but said that he was nearly 60 and wanted to be reunited with his daughter and spend time with his grandchildren. He had a lot of support outside and had volunteered to help dysfunctional youth. When the question was repeated, he said he thought he could handle such a relationship.
28. When it was put to him that he had been violent towards Kim Cameron before murdering her, he said that they had argued and he had slapped her face twice. He denied breaking her ribs. He explained that “I don’t drink, but I had a few drinks”. He went on to say that the police were upset with him because of the armed robbery in which he was involved, but his only complicity had entailed the concealment of information. In any event the armed holdup squad had been the subject of a Royal Commission.
29. Asked about the two assaults against women for which he had been convicted in New Zealand, he said that in one case he had just pushed away from him a stranger who was importuning him. In the other case he did not touch the woman at all but verbally abused her, but was nevertheless arrested.
30. The applicant said his family in Australia consists of his daughter, granddaughters, his twin brother, his sister and his nephews and nieces; they are a close family. His granddaughters are aged 17, eight and one. His daughter could not attend the tribunal because she was sick (or one of her children was sick, it was not clear), and he had not asked his niece and nephew to give evidence because they were police officers and he did not wish to jeopardise their careers by involving them in the case.
31. Statements were also tendered on his behalf by his twin brother Debden Tumanako (Exhibit A5), and Kip Sly (Exhibit A3). Mr Debden Tumanako stated that the applicant would reside with him and his wife if he were allowed to remain in Australia. Mr Sly, who is the managing director of Superior Rubber (Australia) Pty Limited of Wetherill Park, stated that the applicant had been employed by his company for approximately 18 months. He had found him to be dedicated and hard-working and would have no hesitation in recommending him to any future employer. On a personal note, Mr Sly said he found the applicant polite, honest and approachable and a person of solid standing who he called a friend. Both Mr Sly and Mr Debden Tumanako adopted their statements on oath at the hearing but were not otherwise examined.
Observations on the applicant’s evidence
32. There is little doubt that the applicant feels genuine remorse about the murder of Kim Cameron and depriving Alana Cameron of her mother from a young age. He says he accepts full responsibility for his crime, but qualifies that by insisting on his defence of diminished responsibility even though it was rejected by the jury, by McInerney J and by Sperling J. Rightly or wrongly, however, I think it has, or has taken on, a degree of subjective reality for him. The supplementary pre-release report dated 21 June 2006 concludes that the applicant “had probably demonstrated insight to the extent that could realistically be expected of him”, and his evidence at the hearing supports that conclusion.
33. At the same time, he still appears to see himself as a victim of persons or institutions that falsely or unreasonably accuse him of violence towards women. He sought to cloud and minimise his earlier assault on Kim Cameron and at least one of his assaults on women in New Zealand. He persists in calling for a judicial inquiry into the t-shirt allegation. It is not clear what purpose such an enquiry would serve, and he chose to preserve a mysterious silence on the point himself, but conceivably it is calculated to prop up some kind of self-justifying image of himself as a victim.
34. Although I think he genuinely believes that he did not know what he was doing at the time of the murder, it is also clear that he made knowingly untruthful statements to the tribunal, as well as to others.
35. One of those related to the earlier assault on Kim Cameron. In his interview with Dr Anthony Samuels, Senior Visiting Forensic Psychiatrist with Justice Health Services, he admitted there had been violence in the relationship but denied breaking her ribs. At the hearing he repeated that denial and said he had simply slapped her face twice. Parole service records, however, show that in October 1986 he informed his supervising officer that he had assaulted Kim. Subsequent enquiries revealed that she had been admitted to hospital with a broken jaw and cracked ribs. No charges were laid (G p99). When interviewed for the purposes of his pre-release report in November 2002, he at first denied any violence at all towards the deceased before the murder. He later accepted, however, that the facts did not support that assertion and then changed to saying that he had assaulted the victim on only one occasion (G p100).
36. Another related to his use of alcohol. At the hearing, he said in connection with the assault on Kim, “I don’t drink, but I had a few drinks”. He also told Dr Samuels in June 2006 that he had never been a drinker but had occasionally smoked marijuana. At the hearing before Sperling J in March 2001, however, he admitted that before the murder he did on occasions tend to drink too much. Sperling J concluded that it seemed likely that alcohol played a role, perhaps not a very significant role but a role nevertheless, both in the murder and in the earlier assault on the deceased. The applicant had admitted that before going to the kindergarten on the day of the murder, he had consumed several cans of beer and had smoked marijuana (G pp77, 83).
37. Again, McInerney J concluded that at the trial the applicant had lied to the jury about an alleged meeting on the day before the murder at which the deceased had supposedly indicated a desire to resume the relationship, as well as about certain other aspects of the crime (G pap71-74), quite apart from his diminished responsibility claim.
38. Further, he told his probation and parole officer at the interview for the purposes of his pre-release report that he had served in the New Zealand army in Vietnam and there had “some horrible experiences” that he found it almost impossible to talk about (G p99). When told that inquiries were being made with the New Zealand authorities regarding his army service in Vietnam, he said that he had only spent two years with the cadets in his late teens, and had made up the Vietnam story to obtain the leniency of the courts (G pp100, 106).
39. That record of fabrication on material matters makes it imprudent to give weight to the applicant’s uncorroborated evidence on contested matters.
Application of the Law and Findings of Fact
40. The applicant did not concede the character point, but it is beyond dispute. The applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Tumanako was sentenced to life imprisonment (later redetermined to 20 years) for murder (the victim being his estranged de facto wife, Kim Suzanne Cameron). In his statement of facts and contentions (Exhibit A2) and in his representative’s oral submissions, the applicant conceded the character point.
41. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Tumanako’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
42. 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
43. Examples of what the Government views as serious offences are set out in paragraph 2.6. This includes, in subparagraphs (e) armed robbery, (f) murder, (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community and (o) ancillary offences in respect of any of the above including convictions for being an accessory before or after the fact of the above offences. Paragraph 2.7(b) also states that it is the Government’s view that the sentence imposed for the crime is also an indication of the seriousness of the offender’s conduct against the community and that decision-makers should have regard to the repugnancy of the crime and that crimes involving violence are especially repugnant to the community.
44. 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.
45. The applicant’s representative initially submitted that the first issue to be dealt with was that because the applicant is an absorbed person under s 34 of the Migration Act, he has a statutory entitlement to remain indefinitely in Australia and that his continued stay in Australia does not require him to be of good character. He submitted:
… that the purported exercise of discretionary powers by the Minister would require the scope of s 501 to have a retrospective effect capable of derogating an existing right in circumstances offensive to ordinary principles of statutory interpretation.
…
46. At the hearing Mr Levingston explained, but did not press, that point. He raised, however, the question of whether the tribunal had jurisdiction to review the delegate’s decision of 7 July 2006 to cancel the applicant’s visas. He very properly drew attention to the point, notwithstanding its effect on his client’s position, pursuant to his obligations as an officer of the Supreme Court. He pointed out that on 13 March 2003 the Minister, exercising his personal powers under s 501(2) of the Migration Act, had cancelled the applicant’s visas. If not challenged pursuant to one of the exceptions in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, it was a privative clause decision that had not been set aside and remained in force. Pursuant to s 501F, when the Minister cancels a visa under s 501, all other visas that the person held at the time are taken to have been cancelled by the Minister. The delegate’s decision of 7 July 2006 to cancel all the applicant’s visas could only have legal effect if something had remained after the Minister’s 2003 decision, but s 501F had the effect of cancelling all visas, including any common law rights the applicant may have had as an absorbed person. The 2003 decision was therefore conclusive, even if it was infected by legal error, because a privative clause decision stands until it is set aside by a court. The Minister would have needed to seek a declaration that the 2003 decision was a nullity, but had not done so and no declaration had been made. Consequently, if the tribunal were to review the decision of 7 July 2006, its decision could be set aside for lack of jurisdiction. In that event the applicant would be liable to removal because his visas were cancelled in 2003.
47. On behalf of the respondent Mr Eteuati submitted that the Minister’s exercise of power in 2003 was affected by jurisdictional error. The High Court had held in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 that in a case where jurisdictional error had occurred, the statutory duty had not been performed and the Minister was under a duty to exercise it, even in the absence of any decision of a court. The original decision was a nullity because the department had thought the applicant had held a special category visa available to New Zealand citizens. That was an error, because as a person deemed absorbed before 1984, he held an absorbed person visa and thus did not qualify for the special category visa. But Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 had held that where the Minister purports to cancel a visa of a kind not held by an applicant, that is a matter of jurisdictional error. Further, under Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, the privative clause only applied in cases where there was no jurisdictional error.
48. In my view that submission is correct. In Johnson, French J pointed out that a decision purporting to cancel a visa other than the one the applicant actually held was not a mere error of nomenclature that does not affect the subject matter of the ministerial decision. “The Minister would purportedly be exercising his power under s 501 with respect to one subject matter (ie a temporary special category visa) when in fact the relevant visa was a permanent absorbed person visa. That would be a matter of jurisdictional error for the Minister would not be addressing the question which s 501 requires him to address” (at 506). In Plaintiff S157/2002, the High court held that s 474 of the Migration Act, which provided that a privative clause decision was final and conclusive, did not prevent the judicial review of decisions that involved jurisdictional error. Decisions of that character were not “privative clause decisions” because they were not decisions made “under” the Act.
49. That case did not involve the cancellation of a visa of a type that the applicant did not hold, but Johnson makes it clear that such a decision does rest on jurisdictional error. Consequently, under Bhardwaj principles, it was open to the Minister to exercise the power, and she did so through the delegate’s decision on 7 July 2006. As that decision had legal effect, the tribunal has jurisdiction to review it.
Protection of the Australian Community
50. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant was convicted of murder and sentenced to life imprisonment which was later redetermined to 20 years imprisonment. In his sentencing remarks of 11 May 1990, McInerney J of the New South Wales Supreme Court criminal jurisdiction described how the applicant had been in a de facto relationship with the deceased, Kim Cameron, and that she was in a new relationship at the time of the murder. On the day in question, the deceased and her new partner (a Mr Harrison) had gone to collect the deceased’s child (who was then aged four) from kindergarten at Revesby. The applicant went to the kindergarten with the intent of attempting to resume his relationship with the deceased. McInerney J continued:
Unfortunately for the deceased as it turned out, she arrived at the kindergarten driven by Mr Harrison and it appears it was Mr Harrison’s presence that brought about her death. … Mr Harrison’s evidence was that the prisoner then alighted from his vehicle and said words to the effect “What’s going on here? You’re my girl. I’ll kill you for this”. Mr Harrison said that the prisoner then pulled a leather pouch out of his pocket and took a knife out of the pouch and walked forward and grabbed the deceased by the hair, pulled her down and started punching her but when the blood came, he realised differently.
In the meantime, the deceased was crying out “Save Alana”. The prisoner, according to Mr Harrison, stated “You’ll die for this”. Mr Harrison then tried to come to the deceased’s rescue but the prisoner swished the knife at him so that he could not get near him. Mr Harrison said that he then tried to kick him and at that stage the prisoner let the deceased go and she fell landing on her back at the bottom of his feet and the prisoner then sang out to her, according to Mr Harrison, “You’ll die for this, you bitch”, and he then called to Mr Harrison “You’re dead. I’ve got a gun in the back of the Kombi van”. I might add that there was no evidence that he did have such a weapon. The prisoner then stabbed the deceased twice in the chest, thrusting downwards, according to Mr Harrison, and then jumped into the van and drove off. As a result of these injuries, the deceased died.
… This was a brutal killing in front of the deceased young daughter. …
51. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(e) armed robbery
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; …
(o) ancillary offences in respect to any of the above offences, including:
·conviction for being an accessory before or after the fact of the above offences.
52. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;
(b)the repugnancy of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
53. In his sentencing remarks on 2 March 2001 upon the redetermination of the applicant’s life sentence, Sperling J of the Supreme Court of New South Wales, commenting on the severity of the crime said “I do not lose sight of the stark reality that to kill a mother in the presence of a young child is an aggravating factor of very considerable moment. It goes to the culpability of the accused, it is a part of the objective circumstances of the crime” (G p76).
54. The respondent in her statement of facts and contentions (Exhibit R1) contends that the seriousness of the applicant’s crime is indicated by the length of his sentence – life imprisonment (redetermined to 20 years), noting the sentencing comments of McInerney J of the New South Wales Supreme Court on 11 May 1990, when he said “This was a brutal killing in front of the deceased’s young daughter and, on the whole of the facts as I understand them, I do not accept that he was suffering from any dissociated state at the time and I believe this was rejected by the jury”. There are no mitigating factors. It cannot be disputed that such a crime must be regarded as very serious within the meaning of the direction.
55. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. Mr Tumanako’s criminal record consists of two convictions for assault female when he was aged 18 and living in New Zealand. In Australia, he has had convictions for driving-related offences in addition to a conviction of accessory after the fact of armed robbery, for which he was sentenced to six years imprisonment. The delegate considered there was a low risk that Mr Tunanako would re-offend and placed only moderate weight on this consideration.
56. Mr Levingston submitted that estimating the risk of recidivism here was a matter of guesswork, but it was significant that his prior assaults were not very serious. He was not a man addicted to violence. He had undertaken a series of courses aimed at controlling rage and the risk of further outbreaks was low. He had in any event been removed from society for 20 years already.
57. In her statement of facts and contentions the respondent contended that the applicant might re-offend, noting the comments of the Probation and Parole report dated 14 November 2002 which stated:
the case management file noted that the inmate throughout his sentence, has displayed behaviours that indicated a problematic temper, impatience and frustration.
…
It is considered that the inmate genuinely regrets his actions in having committed the murder. He has also demonstrated what appeared to be genuine sorrow and grief for the trauma caused to those close to the victim.
However there appears to be a considerable lack of insight into the role his values and beliefs, contributed towards the tragedy. It appears that the inmate has failed to make positive progress in this area, despite considerable contact with psychological services. It would appear that the inmate’s attempts at therapy may have been superficial.
It is considered that there is a high likelihood that the inmate will again be involved in relationships with females and that he will present a risk in such relationships.
It is considered that the inmate has yet to address significant emotional issues associated with his upbringing. Of note are issues of isolation, separation and abandonment as a child, as well as significant abuse perpetrated by carers.
58. While it was true that he had committed no acts of violence while incarcerated, Mr Eteuati conceded, that was of little significance as all his violent offences were against women, so the risk of repetition would not arise in jail.
59. The respondent also noted that when redetermining the applicant’s sentence on 2 March 2001, Sperling J of the Supreme Court of New South Wales Criminal Division commented “It is clear that the applicant is an emotional man and I do not doubt that, on his release, he will again become involved with a woman or women in an intimate way” (G p82). The respondent therefore submits that given the probation and parole report and the comments of Sperling J, there is a real chance that the applicant’s conduct could be repeated. Further, even if the tribunal were to find only a slight risk, the consequences for the Australian community warrant cancelling the applicant’s visa.
60. There is considerable evidence to support the view that the applicant represents a low risk of re-offending. All those who have been in contact with him believe he displays genuine remorse for the crime of murder. His prison charge record, while not flawless, is very good considering the length of his incarceration. Prison authorities regarded him as a model prisoner who gave no trouble and played a useful role in helping younger inmates. He undertook several rehabilitation courses conscientiously and received a commendation for his participation in the violence prevention program. He completed a number of useful vocational courses that will help him to find employment on his release. He prepared a pamphlet for the children of prisoners that was published by the New South Wales government and he took an active role in organising Waitangi Day celebrations and other functions for the New Zealand contingent in prison. He has been approved for work in the Pacific Flava Youth Development Services volunteer support program.
61. Initially he was reluctant to accept parole or move outside jail at all, being so thoroughly institutionalised that he found space and freedom difficult to cope with. After a time, however, he adjusted to the outside world and has now completed over 90 weekend leaves with his family without incident. He performed well in the part-time jobs he secured on the work release program, and then joined Superior Rubber & Plastics Pty Ltd (now called Superior Rubber (Australia) Pty Limited) where he rose from the position of factory worker to production supervisor and has been offered appointment as production manager. His employer, Mr Kip Sly, though no doubt a busy man, took the time to attend the hearing and give evidence in his support (Exhibit A3). The applicant said he would be working for Superior Rubber if released into the Australian community.
62. His twin brother Mr Debden Tumanako stated (Exhibit A5) that if released he would be
part of a caring and committed Christian family surrounded with family values, love and compassion. He has been offered full time employment with the company he is currently working for…, however he will be employed by my wife and I… in the family landscaping business. He will reside at our residence and will be attending church with my family and I.
63. There is thus some conflict of evidence as to whether he would be working at Superior Rubber or in the family landscaping business, but that is not significant. The applicant’s daughter did not attend the hearing, apparently because either she or one of her children was sick, but there was no explanation as to why she had not lodged a written statement.
64. The Probation and Parole Service Supplementary Pre-Release Report dated 21 June 2006 notes that there have been significant developments within the applicant’s attitude to significant concerns, personal support circumstances and consistent and reliable routine behaviours. Parole was recommended. The Serious Offenders Review Council made a recommendation to a similar effect on 6 June 2006.
65. On the other hand, the supplementary pre-release report also reaffirmed its “long standing concerns”. Dr Samuels’s psychiatric report for Justice Health noted that on the Millon Clinical Multiaxial Inventory III, there were concerns that the applicant might be adjusting his test answers to place himself in a favourable light. That feature might indicate a tendency to deny psychological or interpersonal difficulties. “There does seem to be a pattern of assaultive behaviour against women, which pre-dated the murder”, Dr Samuels continued. A psychological report prepared for the New South Wales Parole Board on 21 June 2006 noted that on 21 April 2004 the applicant was assessed under the Level of Service Inventory (Revised) (LSIR) by a probation and parole officer, Mr Marie. This inventory rates individuals from a structured interview and collateral information. It uses both static and dynamic risk factors to assess the level of service required and the probability of recidivism within 12 months of release. Mr Tumanako’s score placed him in the medium-high range for re-offending, which meant that he was considered to have approximately a 57 percent chance of re-offending within 12 months of release. That did not mean that he would or would not necessarily be one of those who re-offends.
66. The report also noted that in a previous psychology report prepared in 2003, his risk of re-offending was assessed as low-moderate.
67. Another factor tending to indicate a recidivism risk is his attempts to mislead the tribunal in relation to the assault on Kim Cameron before the fatal assault, and about his consumption of alcohol. Following his attempts to mislead the jury at his trial and the fabrication of his account of his Vietnam experiences with the aim of securing lenient sentencing treatment, they pointed to an established and continuing propensity to deceive others for his own purposes. His repeated calls for a judicial inquiry over the t-shirt affair may also suggest a certain ability to deceive himself.
68. Reviewing the psychiatric and psychological evidence in conjunction with the other evidence leads me to the conclusion that the applicant’s risk of re-offending is somewhere between low and moderate.
69. The issue of what is meant by a real risk of recidivism in the context of deportation was discussed by the full court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198. The court held that a real risk of recidivism is one that is not far-fetched or fanciful and can include a low or minimal risk.
70. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132, another deportation case, the tribunal observed:
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism…. [E]ven if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
71. The respondent argued that, given the seriousness of murder, the tribunal should find that even a slight risk of re-offending can have great consequences for the Australian community and would warrant visa cancellation for its protection.
72. 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 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).
73. In my view considerations of general deterrence weigh against disturbing the reviewable decision in this case.
Expectations of the Australian Community
74. 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 is such that the Australian community would expect that the person … should be removed from Australia”.
75. The respondent in her statement of facts and contentions submitted that in this case, the community would expect the applicant’s visa be cancelled because of the serious nature of the crime, especially if there were any possibility of recidivism. The applicant’s representative said that the issue of expectations was a nebulous one in this case. The documents showed that persons of interest to the immigration department cannot progress within the correctional system despite their good behaviour. Consequently, although the applicant is on work release, he will have served longer than a person not subject to immigration law. That he could then have his visa cancelled and be removed represented a distortion that could not have been intended and gives him a stronger claim to stay in Australia.
76. Paragraph 2.12 of the direction expresses the policy that decision-makers should treat the nature of the offence as directly relevant to the question of expectations. Some offences might be such that the community would expect on that ground alone that the person should be removed.
77. In the application of paragraph 2.12, some might question whether any combination of remorse, rehabilitation courses, religious renewal, family support and good works could atone for a crime so atrocious as stabbing a young mother to death in front of her four year-old daughter. But in this case, at all events, sufficient concerns remain, as I have indicated above, to suggest that there is a low to moderate risk that the applicant will commit further crimes of violence, particularly against women. Given the nature of the crime and the existence of that risk, I find that community expectations favour visa cancellation in this case.
Best Interests of the Child
78. The third primary consideration in all cases involving a parental or other close relationship between a child or children and the person under consideration, is the best interests of the child or children. 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”. The tribunal also notes 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)).
79. In this case, Mr Tumanako has three grand-daughters under the age of 18 whose interests must be considered. They are the children of Mr Tumanako’s daughter, whose interests are considered below. They are aged 17, eight and one year and are Australian citizens. They have developed a relationship with the applicant through visiting him in prison since 1995 (G p209).
80. The respondent in her statement of facts and contentions submits that in this case, the nature and quality of the applicant’s relationship with his grand-daughters is unclear because he has not provided any statements from them or any evidence as to how often they visit him. Further, he does not provide for their day-to-day care and is unlikely to do so upon his release, as there is evidence that he will not be living with his daughter if he were to remain in Australia. The respondent therefore submits that the interests of the children should be given minimal weight as it is not a parental relationship and that their interests are outweighed by the considerations of the protection and expectation of the Australian community.
81. It appears that for a period of a couple of years, or perhaps more, his daughter did not visit him in prison because she was suffering from a mental health problem and other sicknesses (G pp82, 229). That makes it harder to assess the strength of the relationship with the grandchildren. None of the grandchildren gave evidence about their relationship with the applicant, although the eldest, aged 17, might have been expected to do so or at least to submit a written statement. Further, the evidence shows that in any event the grandchildren will continue to live with their own parents, and that is the primary concern of Direction No 21 in this context.
82. I therefore find that the interest of the child factor does not weigh against visa cancellation in this case.
Other Considerations
83. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and any compassionate circumstances.
84. In his statement to the tribunal dated 13 September 2006 (Exhibit A4), Mr Tumanako also asked the tribunal to consider his daughter, Slovanya Katarina Rangi (Raynor) Aksu, born 31 May 1971 and aged 35. Ms Aksu is the daughter of the applicant and his former wife, Margarita Filova, whom he married on 26 February 1971 (G p31), the marriage ending when the parties separated in approximately 1974 when Ms Aksu was three years old. At that time, Ms Filova took her daughter and moved to Bratislava, where they lived with her parents. Mr Tumanako was not reunited with his daughter until 1995.
85. In a statutory declaration dated 30 June 2005 provided to the department, Ms Aksu said that she would not move to New Zealand to be close to her father if his visa was cancelled because her family do not want to move and it would be a financial disaster to do so because unemployment is very high and wages very low (G p209). She asked the department to consider allowing him to stay because she had missed spending her childhood with him.
86. At the hearing Mr Levingston submitted that the applicant no longer has any family in New Zealand and that removing him there would disrupt his Australian family. Having spent so long in an institutional setting, he needs assistance in coping with everyday life. He is absorbed in to the Australian community, has served a long sentence and has been of good behaviour since his conviction.
87. The applicant has useful work skills and a first-class reputation as an employee. He could expect an excellent reference from Superior Rubber. There is no evidence to corroborate the assertion that in New Zealand unemployment is very high and wages very low. The applicant would be in a good position to obtain employment and now that he has adapted to life outside prison he should have no particular difficulties in settling into New Zealand life. He would certainly miss his daughter and the grandchildren, but one must not overlook the fact that Kim Cameron’s family will never see her again and that her daughter Alana had to grow up without her mother, with what consequences the tribunal does not know, as there is no evidence about her fate. The tribunal is required to consider any compassionate circumstances, but compassion is not to be confused with sentimentality (see Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at [121-122]). Compassion considers the common good and takes account of the needs of all people in a comparable position, not only the one who happens to be in the spotlight. It looks to the long term effects as well as those in the short term.
88. If the applicant is removed to New Zealand there will be nothing to prevent his daughter and granddaughters from visiting him there. Modern communications, including the internet and webcam, would help them to remain in touch at other times. His renewed involvement with the church would help him to find and develop a network of contacts in New Zealand if he chose to avail himself of that opportunity.
89. In my view the considerations of community protection and expectations outweigh all considerations favouring non-cancellation. The decision under review should be affirmed.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 26 September 2006
Date of Decision 4 October 2006Solicitor for the Applicant Mr C Levingston, Christopher Levingston & Associates
Solicitor for the Respondent Mr T Eteuati, Clayton Utz Solicitors
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