Uelese and Minister for Immigration and Border Protection (Migration)
[2015] AATA 740
•23 September 2015
Uelese and Minister for Immigration and Border Protection (Migration) [2015] AATA 740 (23 September 2015)
Division
GENERAL DIVISION
File Number(s)
2012/3894
Re
Peter Uelese
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 23 September 2015 Place Sydney The reviewable decision made 3 September 2012, being the decision of the Minister for Immigration and Citizenship to cancel Mr Uelese’s Class TY subclass 444 Special Category (Temporary) visa, is affirmed
....................................................................
Deputy President J W Constance
Catchwords – Class TY Subclass 444 Special Category (Temporary) visa – criminal offences – cancellation of visa – Direction 65 – character test – protection of Australian community – best interests of minor children – whether risk of future harm to Australian community unacceptable – history of violent criminal conduct – significant risk of reoffending – lack of rehabilitation – countervailing considerations of children – decision affirmed
Legislation
Migration Act 1958 (Cth) s 499, 500, 501
Secondary Materials
Direction No. 55 – Visa refusal and cancellation under s501
Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
INTRODUCTION
Mr Uelese was born in Samoa in 1984. He entered Australia with his parents and siblings in 1998, when he was 14 years old. Since his arrival he has resided continuously in Australia. Until 3 September 2012 he held a Class TY Subclass 444 Special Category (Temporary) visa.
Mr Uelese has committed a number of criminal offences. His first offence was in October 1999 and his last in December 2011. His first conviction was in October 2003. Two convictions resulted in his serving terms of imprisonment. He was released from the second term in September 2012 and immediately taken into immigration detention. He has been in detention ever since.
In September 2012 the Minister for Immigration and Citizenship cancelled Mr Uelese’s visa as he suspected that he did not pass the character test set out in section 501 of the Migration Act 1958 (Cth), and as Mr Uelese did not satisfy him that he did pass the test.[1]
[1] Section 501(2).
Mr Uelese applied to the Tribunal to review the Minister’s decision. His application was initially heard in 2012 and the Minister’s decision was affirmed. References to the transcript of proceedings in 2012 are references to the transcript of the initial hearing.
Following the hearing of an appeal, the High Court of Australia remitted the matter to the Tribunal to be re-heard. This took place on 2 and 3 September 2015.
For the reasons which follow, the decision of the Minister will be affirmed.
FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr Uelese.
Mr Uelese was born in Samoa and is a citizen of that country. When he was three years old he moved to New Zealand with his family. In addition to his Samoan citizenship he is a citizen of New Zealand. He lived in New Zealand until he moved to Australia with his family in 1998. He is the eldest of seven siblings.
Mr Uelese attended school in New Zealand and Australia. He left school after completing year 10 and commenced employment. From that time until he was sentenced to imprisonment in October 2010 he worked in several trades.
History of offending
The following offences have been committed by Mr Uelese.
Date of conviction Date of offence Offence Sentence 25 October 1999 October 1999 Break and enter building commit felony Released on entering recognizance self $100 to be of good behaviour for 12 months. 27 October 2003
October 2003
Use offensive language in/near public place/school On each charge: fined $300. Behave in offensive manner in/near public place/school 12 July 2005
16 November 2003 Assault occasioning actual bodily harm Imprisonment 9 months suspended on entering bond to be of good behaviour 9 months. 14 December 2004 Common assault Community service order 150 hours. 16 November 2003 Affray Convicted. Bond to be of good behaviour for 2 years. 25 January 2007
3 January 2006 Supply a prohibited
drug
Imprisonment 6 months suspended on entering bond to be of good behaviour 6 months. 3 January 2006 Possess prohibited drug On each charge: convicted. Bond to be of good behaviour for 2 years. 20 June 2011 8 October 2010 Assault occasioning actual bodily harm Imprisonment 16 months. Non-parole period of 8 months. 6 December 2011
1 January 2010
Recklessly cause grievous bodily harm in company Imprisonment 36 months. Non parole period 18 months. Affray Imprisonment 6 months. Assault occasioning actual bodily harm Taken into account on above. THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)) …
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more …
It is to be noted that the section refers to the sentencing to, and not the serving of, a term of imprisonment.
The power of the Tribunal to review the decision to cancel Mr Uelese’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014.
At the time Mr Uelese’s visa was cancelled an earlier direction, Direction No. 55 – Visa refusal and cancellation under s501 was in force. However this Direction was revoked by Direction No. 65 with effect from 23 December 2014.
THE CHARACTER TEST
As Mr Uelese was sentenced to imprisonment for 36 months he has a “substantial criminal record” in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.[2]
[2] This discretion is granted by section 501(2).
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part A where relevant, in order to determine whether Mr Uelese will forfeit the privilege of continuing to hold a visa. In so doing I am required to determine whether the risk of future harm by Mr Uelese is unacceptable.
Under the heading General Guidance (paragraph 6.2), Direction No.65 provides in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk or similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the Visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[3] Primary considerations should generally be given greater weight than the other considerations[4] and one or more primary considerations may outweigh other primary considerations.
[3] Direction 65, paragraphs 6.2(3) and 8(1).
[4] Direction 65, paragraph 8(4).
Paragraph 9(1) provides:
In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
REASONING
A. PRIMARY CONSIDERATION (a) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
I note that I must have regard to matters set out in paragraph 9.1 being:
·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
·the nature and seriousness of the non-citizen’s conduct to date;
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[5]
A.1 The nature and seriousness of the Applicant's conduct to date
[5] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct which may not constitute a criminal offence.
Sub-paragraph 9.1.1(1) of Direction No.65 provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen’s escape from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Mr Uelese's conduct to date is to be viewed as very serious as it has involved physical violence to five people, including his partner and his partner’s mother, on separate occasions over several years. Between October 1999 and December 2011 he has appeared before a Court on six occasions and has been dealt with for 12 offences. At least five of these offences involved the infliction of harm upon others.
Offences committed 1999 – October 2003
Mr Uelese first appeared in court when he was 15 years old. In company with others he broke into the home of a friend. Mr Uelese says that no damage was done to the property and the records indicate that nothing was stolen. It is not apparent what felony was committed. The offence was committed 17 months after Mr Uelese arrived in Australia.
The appearance in October 2003 resulted from contact with police in a park. At the time Mr Uelese was 19 years old.
Assault occasioning actual bodily harm and affray November 2003
On 16 November 2003 Mr Uelese, in company with others, assaulted a person who he believed had done something to a friend of his. When he gave evidence before me he said that he and some mates were in a park throwing bottles and he hit someone. He said that he was drunk at the time.
This version of events differs significantly from what Mr Uelese told this Tribunal in October 2012. On that occasion he agreed that he had grabbed the victim and punched him in the head three or four times resulting in the victim being injured and taken to hospital.[6] This is consistent with what is recorded in the Police Facts Sheet presented to the Court. The information presented includes the following:
The victim … fearing that he was about to be assaulted started to run. The witness … saw the accused UELESE grab [the victim] and punch him to the head and face about three or four times. Other unidentified persons were involved in this assault as well. … The victim … was taken to hospital suffering the following injuries: laceration to right lower chest/upper abdominal wall, a laceration to upper lip, laceration to tongue and the loss of one top front tooth. Despite a thorough investigation police cannot prove who caused these injuries. [7]
[6] Exhibit R3 p.15.
[7] Exhibit R2 p.156
In July 2005 Mr Uelese was convicted of assault occasioning actual bodily harm and affray arising from this incident. He was sentenced to nine months in prison. The sentence was suspended on his entering a good behaviour bond. Mr Uelese had been held in custody for two months prior to his sentencing as he was unable to meet bail conditions.
Assault on Ms Fatai December 2004
On 14 December 2004 Mr Uelese slapped his partner, Ms Fatai, across the face during an argument about the care of their children. They were living separately at the time. He says he was affected by alcohol and cannot remember much about the incident. Mr Uelese was convicted of common assault and ordered to perform 150 hours of community service.[8] He acknowledged that he did not attend many of the periods of service and there were considerable difficulties involved in his performance of the service. After action was taken to revoke the community service order as a result of Mr Uelese’s non-compliance, the Court permitted him to complete his obligations.
[8] Exhibit R2 p.159ff.
Supply and possession of prohibited drugs January 2006
In 2007 Mr Uelese was convicted of possessing and supplying the prohibited drugs, cocaine and heroin. He was not using these drugs and described the incident as “just an idea at the time.” [9] He said that he stole the drugs and sold them to make money.
Assault occasioning actual bodily harm, recklessly causing grievous bodily harm in company and affray January 2010
[9] Transcript 3/09/2015.
These offences arose out of a series of events on New Years Eve 2009 which culminated in Mr Uelese and a number of other males attending a home near where he was living. The group attacked a number of persons at the home and caused damage to the property. It was alleged that Mr Uelese kicked the face of one victim at least twice and that he was part of a joint criminal enterprise to assault the occupants. The blood of two of the victims was found on Mr Uelese’s shoes and clothing.
In her sentencing remarks dated December 2011, Judge Ashford noted one of the victims was kicked and hit to his head and face. He remained on the ground with his face and head being kicked and stomped on by a number of people until police arrived. He was taken to hospital where it was determined that he had suffered “multiple blunt injuries to his face, head and chest, bruising around the right eye and left forehead, a CT scan apparently showed fractures to the medial wall and floor of his left eye socket, as well as a fracture of the nasal bone. … There was also damage to his eyesight in that he suffered blurred vision”[10]. He suffered persisting double vision. Medical opinion at the time of sentencing was that the victim’s double vision was directly related to the orbital fractures and was likely to be permanent.
[10] Exhibit R1 p.38.
Another victim identified Mr Uelese as having a beer bottle in his hand and behaving aggressively, saying “who wants a go”.[11]
[11] Exhibit R1 p.40.
In October 2012 Mr Uelese told the Tribunal that he attended the premises and attempted to stop the fighting.[12] I do not accept this evidence.
[12] Exhibit R3 p.20.
By reason of the seriousness of the conduct in which Mr Uelese was involved and the complexity of the facts, I have annexed to these reasons further excerpts from the sentencing remarks of Her Honour Judge Ashford in the District Court of New South Wales.
Assault occasioning actual bodily harm to Ms Fatai’s mother October 2010
Mr Uelese’s next court appearance was in the Local Court in June 2011 when he was convicted of assaulting Ms Fatai’s mother causing her actual bodily harm. The assault occurred in October 2010. During an argument with the victim Mr Uelese punched her in the face. The victim was affected by alcohol at the time and had attended the house in which Mr Uelese was living with Ms Fatai and their children. An argument between them took place. The Court was satisfied that there had been some aggravation by the victim. At the time of the commission of this offence Mr Uelese was on bail in respect of charges relating to the assaults which occurred on 1 January 2010.
In adjudicating on the facts to be taken into account on Mr Uelese’s plea of guilty Magistrate Burdett said:
She says that he got out of his chair and walked towards her; she realised she was going to or at least had anticipation that she was about to be bashed by him and that she has, in fact, thrown the bottle of beer over him. She then says that he, in fact, punches her to the face. That part is not in issue and, indeed, photographs taken by Constable Hyam on the morning of 8 October, being photos 1 and 2, are in fact specifically in relation to the injuries she has received the jaw and the cut to the inner lip as a result of the single punch. There is no issue that she was, in fact, as a result of that blow knocked to the floor in the premises.[13]
[13] Exhibit 1 p.82.
The victim lost consciousness for a short period of time.
The maximum term of imprisonment for the offence at the time was five years, although the maximum term which could be imposed in the Local Court was two years. Mr Uelese was sentenced to 16 months imprisonment.
Conduct whilst in immigration detention
Mr Uelese was in prison from 20 February 2011 until 6 September 2012, when he was released on parole. He was taken into immigration detention immediately on his release and has remained in detention since that time.
Counsel for the Minister referred to several incidents, a result of which Mr Uelese received adverse reports in the records of the detention centre.[14] I am satisfied that the following description of those incidents taken from the Respondent’s Statement of Facts and Contentions is an accurate reflection of the information contained in the Incident Detail Reports prepared by the Department of Immigration and Border Protection.
[14] Exhibit R4.
On 26 December 2012 the applicant became involved in an altercation with another detainee. Both detainees were verbally abusive and aggressive towards each other, although the applicant was observed to be the more aggressive of the two. The applicant said out loud “I want him I am going to get him”. Detention staff intervened to stop the incident from escalating.
On 8 February 2013 the applicant became involved in an altercation with another detainee. The applicant was aggressive and abusive. He yelled ‘… you dog c***, where are you, I’m going to bash the f*** out of you’.
On 13 June 2013 the applicant approached another detainee in the dining area, called him a “dog” and tried to assault him. Detention staff quickly intervened to separate the detainees.
On 8 December 2013 the applicant threw food at a kitchen staff member when advised that he could not have 2 serves of beef ribs. He became aggressive and threatened the staff member, stating ‘I am going to kill you when you come out to clean”. He also threw a chair towards a camera. The camera was damaged as a result.
On 23 January 2014 the applicant allegedly verbally abused and punched two other detainees.
On 9 August 2014 the applicant and another detainee tried to push a detention staff member in the visiting area.
On 30 October 2014 the applicant caused damage to various items in the common area of a dorm. These items included a camera, bins and chairs.
Also on 30 October 2014, the applicant assaulted another detainee because that person had failed to voice his concerns about disputed Individual Allowance Program (IAP) points.
On 15 May 2015 the applicant spoke to a staff member in an aggressive manner and threw a plastic chair.
On 21 June 2015 the applicant became abusive and aggressive when he was informed that his visitors could only bring bottles no larger than 600mL into the facility. [15]
[15] Respondent’s Statement of Facts and Contentions p ara. 13.
Counsel for Mr Uelese rightly pointed out that the staff at the centre noted many of the incidents to be “minor´ and that no criminal charges were laid against Mr Uelese arising from the incidents. However disciplinary action was taken against Mr Uelese on at least one occasion.[16] Mr Uelese claims that at times he was provoked by other detainees and by conditions at the centre.
[16] Exhibit R2 p.659.
Consideration of the “nature and seriousness” of the conduct
In view of the number of offences involving physical violence (including domestic violence) and incidents in which Mr Uelese has threatened violence, I regard his past conduct as very serious.
The Courts did not impose the maximum penalties for the crimes committed, but on three occasions they have been regarded as sufficiently serious to warrant significant terms of imprisonment. Despite Mr Uelese having been given the opportunity of community service and a suspended sentence, he continued to offend. The offences escalated in that by 2010 he committed three serious assaults within a period of less than six months.
Mr Uelese agrees that his offences usually were committed when he was under the influence of alcohol and at times directly a result of angry outbursts. His conduct in Villawood, whilst not alcohol affected, indicates an ongoing inability to control his anger.
A2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Sub-paragraph 9.1.2 (2) of Direction No.65 provides:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The evidence of Mr Uelese
Mr Uelese misses contact with his family and being able to fully engage in family activities. He believes that he has matured during his incarceration and detention and will not re-offend. He and Ms Fatai plan to marry upon his release.
Should he be able to live within the Australian community he plans to work hard to maintain his family and assist Ms Fatai in the day-to-day care of their children. He has been offered permanent employment and plans to take up this offer should he be free to do so.
Mr Uelese acknowledges that his anger and/or excessive alcohol consumption were involved in his violent offending. He says that he will attend courses to assist him with anger management and alcohol consumption when he is released, although he says that after his time spent in custody without access to alcohol he no longer has a problem in this regard. He plans to limit his alcohol consumption to special occasions.
Mr Uelese attended approximately five Alcoholics Anonymous meetings in 2005 – 2006. He also attended some sessions of a Pacific Islander program at Mt Druitt over a couple of weeks in 2005. In his view the organisers did not put enough effort into the course, although when asked he agreed that he too did not put in enough effort.[17] He continued to consume alcohol to excess.
[17] Exhibit R3 p-27.
When Mr Uelese was imprisoned in the Parklea Correctional Centre in 2011 he commenced a Pacific Islander alcohol program. He did not complete this program as he was transferred to the Bathurst Correctional Centre where the program was not available.[18] Mr Uelese requested the transfer. He also failed to complete a Fitness/Health short course while at Bathurst Correctional Centre. The records indicate that Mr Uelese left the class on three occasions and missed the examination.[19] The records also show that he attended several other courses, however they were unrelated to addressing his alcohol and anger issues.
[18] Transcript 30/10/12 p-12.
[19] Exhibit R2 p.272.
Mr Uelese consulted a counsellor at the Villawood Detention Centre once or twice per week for just over a year. He says that this helped him remain calm. He also said that he attended an anger management course for approximately two months. He provided a certificate which indicated that he attended such a course on 18 March 2013.[20] It did not refer to attendance on other dates.
[20] Exhibit A17.
Mr Uelese described his present mental state as “all over the place”.[21] He has had discussions with a mental health worker in Villawood and believes he is suffering from depression.
[21] Transcript 02/09/15.
The evidence of Ms Fatai
Ms Fatai confirmed that she and Mr Uelese plan to marry once he is released from detention.
Ms Fatai and her children have visited Mr Uelese regularly whilst he has been in detention. During that time she has noticed a change in Mr Uelese’s attitude – he has been calmer than he was previously and has become more involved with his Church. Ms Fatai proposes that Mr Uelese will live with her and the children in her home should he be free to do so. In her opinion he has matured during his time in prison and in detention and will not re-offend.
The evidence of Mr Probets, Forensic and Counselling Psychologist
Mr Probets assessed Mr Uelese on 24 October 2012, just a few days before the first hearing of this application. The assessment was made for the purpose of those proceedings.
Mr Probets gave evidence at the first hearing and provided a report dated 25 October 2012.[22]
[22] Exhibit A10.
Mr Probets reported, in part:
In my opinion Peter Uelese is genuine in his resolve to reform and never reoffend. Throughout the interview and assessment and the psychometric assessment he was very open and over-exaggerated his symptoms and was heavily critical of himself even though this could go against him as it may make him appear to have a higher level of severity of problems than he actually has. When this aspect of the validity of the assessment is taken into account it is my opinion that he has acted in a very immature manner and is now maturing, albeit rather late.
Also there was evidence in the personality assessment inventory that there were very good prospects of Peter Uelese’s rehabilitation being successful and I note that he has already undertaken some rehabilitation and is willing to undertake more. Also, the personality assessment inventory indicated that he had very good motivation for treatment, he has a positive attitude towards the possibility of personal change and a positive attitude towards, and acceptance of, personal responsibility.
... In my opinion his risk of reoffending is in the range of 10 – 20% depending on whether or not he undertakes the recommended treatment. He poses a low risk of reoffending as he has matured and has fully realised the consequences of his actions including the consequences of the loss of his relationship with his intended future wife and his children. In my opinion Peter Uelese needs to undertake treatment or training in both anger management and for controlling, reducing or eliminating his alcohol intake.[23]
[23] Exhibit A10 pp.6-7.
Mr Probets said that when conducting the assessment he felt Mr Uelese was minimising the seriousness of his offending. In his opinion it would assist Mr Uelese in his attempts to reform if he accepted responsibility for his actions. Mr Uelese acknowledged the role of alcohol in his offending and stated that he needed some form of treatment. Mr Probets suggested to Mr Uelese that complete abstinence may be a “good move”.[24] In his opinion, when the problems of alcohol abuse and anger management are interrelated it can be “particularly nasty”.[25]
[24] Exhibit R3 p.99.
[25] Exhibit R3 p.99.
It is Mr Probets’ opinion that Mr Uelese would undertake the necessary treatment if he is released from detention and remains in Australia. However, on being made fully aware of the nature and extent of Mr Uelese’s offences, Mr Probets changed his view as to the likelihood of his re-offending. In his opinion the risk of re-offending without treatment was 40%, which he put as being “at the upper end of low, maybe medium.”[26] Further, Mr Uelese’s reluctance to accept the seriousness of his offending is a factor to be considered in assessing the risk.
[26] Exhibit R3 p.104.
Sentencing comments
When sentencing Mr Uelese in respect of the assaults on 1 January 2010, Judge Ashford expressed the view that he had “limited insight into his behaviour and this offence, and thus I am of the view that he has guarded prospects of rehabilitation.” [27] Her Honour recommended a Drug and Alcohol Services program together with anger management programs whilst in custody to address violent and aggressive behaviour.
[27] Exhibit R1 p.54.
Magistrate Burden observed in relation to the assault of Ms Fatai’s mother that:
Clearly there is a need for the defendant to undertake some form of anger management. The fact that there appears to be three matters, plus the matter I am dealing with, is four on his record suggest that there is some real problem there that needs to be addressed in the appropriate manner.
… I would indicate that on the parole period I have made a note on the court papers “Subject to supervision on parole/anger management counselling”. [28]
[28] Exhibit R1 pp94-94.
Evidence of Pastor Waininau
Pastor Waininau is a Pastor of the Hillsong Church and a Chaplain at the Villawood Detention Centre. He provided a statement dated 24 July 2015[29] and gave evidence.
[29] Exhibit A20.
Mr Uelese regularly attends Church services conducted by Pastor Waininau at the centre.
In his written statement Pastor Waininau said, in part:
Since 2012 I have observed significant changes in Peter’s demeanour, attitude and behaviour. Initially Peter was reluctant and reticent. He kept mainly to himself, was distant and impatient towards fellow detainees. From a pastoral perspective his transformation is notable as he now engages positively with other detainees and is always respectful and friendly towards our Sunday service team members.
…
I believe these changes to be genuine, as he has shown consistency over the past few years. He has demonstrated a commitment to his own personal reformation in order to become a better man and father to his family. I have spoken at length with Peter regarding his family. He has been missing his children. Although they visit him regularly he is keen to be reconciled to them so that he can provide for his family and to be physically and emotionally present in their development and growth. More critically my discussions with Peter has [sic] pivoted on the importance of his family and children. He has conveyed to me his genuine desire and commitment to make positive changes for him-self in order to be an example to his children.
In my 20 years providing pastoral support to detainees in Villawood Peter’s transformation in attitude and behaviour is a stand out and this is attributed to his self-determination and faith to become a better man.
Should Mr Uelese be released into the Australian community, Pastor Waininau will continue to keep in contact with him. The Church plans to commence a post-release program in the area in which Mr Uelese would be living. In the opinion of Pastor Waininau, Mr Uelese is unlikely to re-offend. Further, in his opinion, Mr Uelese is doing well in controlling his anger.
Evidence of Mr Temur
Mr Temur is a friend, and prospective employer, of Mr Uelese. He provided a statement dated 19 July 2015[30] and gave evidence.
[30] Exhibit A21.
Mr Temur has known Mr Uelese for about 11 years, they having first met as fellow-workers. Mr Uelese worked for Mr Temur for a very short period prior to his incarceration, during which time he formed the view that Mr Uelese was an excellent worker. Mr Temur now operates his own scaffolding business and is willing to employ Mr Uelese should he be able to do so. Mr Uelese would initially earn $800 per week increasing to $1000 per week. Mr Temur is aware of Mr Uelese’s criminal convictions.
Mr Temur has kept in contact with Mr Uelese during his detention. He believes Mr Uelese is remorseful for his past conduct and does not become upset as easily as he has done previously.
Evidence of Mr Naisali
Mr Naisali is a cousin and close friend of Mr Uelese. He provided a statement dated 20 July 2015.[31]
[31] Exhibit A13.
His statement reads, in part:
Throughout my visits to see Peter Uelese at Villawood Detention Centre I have truly noticed a lot of change in him. I visit him every chance I can get off work due to my role. I can assure you that Peter is so willing and determine [sic] to turn his life around for the better and I believe that I am the right person to help him.
I can guarantee that I can get Peter Uelese all his tickets to qualify him to have a fulltime position as a Construction Form worker, as I know how much this will mean for his family. He will be on a 6 day roster, 55 hours a week and on Sunday he can help by being a volunteer at our [Junior Rugby League Club] and still have time to spend with his family.
Consideration of the risk to the Australian community
The nature of the harm to the Australian community should Mr Uelese engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be serious, and perhaps extremely serious. A repetition of the offences involving violence would certainly involve a degree of physical harm to the victims and could result in very serious harm and possibly death. The effect of one or more punches to the head of a victim is well-known in the Australian community.
A repetition of the offence relating to property would cause feelings of insecurity in the communities in which offences were committed. Those subjected to such offences would feel the violation associated with home invasion. Further offences involving the possession and supply of prohibited drugs would have the potential to cause injury to the individuals to whom the drugs were supplied and the further potential for crimes associated with drug addiction.
I am satisfied that there is a reasonable likelihood that Mr Uelese will engage in further criminal or other serious conduct of the nature of which he has been involved in the past. In making this finding I have given serious consideration to his evidence that he does not intend to reoffend upon his release from detention. I am satisfied that at present Mr Uelese genuinely intends this to be the case. However, based on his evidence, I am not satisfied that he fully accepts responsibility for his past conduct. At times he seeks to minimise his involvement in some of the past events.
In this matter, the lack of detailed evidence as to the rehabilitation of Mr Uelese is of great concern. Despite the recommendations of the Courts (in June 2011 and again in December 2011) that Mr Uelese undergo a Drug and Alcohol Services program together with anger management programs whilst in custody, he has not completed all such programs and I cannot be satisfied that effective rehabilitation took place. The evidence before me as to the nature of the courses which Mr Uelese undertook, and the success or otherwise of those programs is very limited. He did not complete the program specifically designed to address alcohol problems among Pacific Islanders. Other than Mr Uelese’s evidence that he undertook an anger management program, information concerning the nature of the program and his engagement with it is minimal.
Although Mr Uelese has indicated that he is prepared to undergo further treatment should he be released into the Australian community, I must assess the situation as it exists, rather than rely on what Mr Uelese may or may not do in the future. Should he be released from detention under the present circumstances, the risk to the Australian community would be determined by the treatment he has undergone prior to the date of this decision. Further, Mr Uelese’s engagement with rehabilitation services provided to him in the past has been less than satisfactory. He completed his community service after a number of unsatisfactory incidents and an application to revoke the order. His engagement with community programs in 2005 and 2006, when he was 22 years old, was minimal.
I have given very careful consideration to the opinion of Mr Probets. However Mr Probets assessed Mr Uelese on only one occasion, in October 2012. He gave his evidence a few days after that assessment. He has not assessed Mr Uelese since that time, nor did he give evidence before me.
It is also important, when considering the evidence of Mr Probets, to take into account that when he provided his report he was not aware of the full extent of Mr Uelese’s offending. When he became aware of this during the first hearing of Mr Uelese’s application, he changed his assessment of the risk of his offending without treatment from 20% to 40%, or as he described it, “at the upper end of low, maybe medium.” In my view, a medium or near medium risk of Mr Uelese repeating offences such as those of which he has been convicted is a very significant risk to the community.
It is of concern that Mr Uelese has continued to exhibit behaviour indicative of a lack of ability to control his anger whilst in immigration detention. Whilst he sought to explain this by reason of the tensions arising from confinement at the Villawood Detention Centre, taking into account the limited rehabilitative treatment received by Mr Uelese, there is a very significant risk that if Mr Uelese was to face situations in the community which caused him to become angry, he would react in the way he has reacted in the past.
The risk arising from Mr Uelese’s inability to control his anger would be compounded by the risk of his being under the influence of alcohol. Mr Uelese has undergone extremely limited treatment for the severe alcohol problem he had prior to his imprisonment and subsequent detention. I note that he has not had the opportunity to consume alcohol for the past 5 years, but he has indicated that he will consume alcohol upon his release. Even though he says that this will be on social occasions only, there is no evidence to support a finding that it is unlikely that he will relapse into his previous consumption patterns. Further the possibility of this situation must be assessed in the light of Mr Uelese’s evidence that his mental state is “all over the place” and that he may be suffering depression.
I have taken into account that Mr Uelese has had the support of Pastor Waininau and his Church, and would be likely to continue to have that support, should he return to the Australian community. Whilst I accept Pastor Waininau’s evidence that Mr Uelese has expressed a desire to be reunited with and support his family his evidence concerning the changes in Mr Uelese’s behaviour is to be considered in light of the incidents recorded in the Department’s reports.
I note also the support Mr Uelese would receive from Ms Fatai and from his family and friends. Given the natural inclination for family and friends to support each other during difficult situations their evidence is of little assistance to determining the risk Mr Uelese poses to the community. Both Mr Naisali and Mr Temur were friends with Mr Uelese throughout the time which Mr Uelese committed the offences and Mr Uelese was employed by Mr Temur shortly before his incarceration. Their support does not, in my view, assist a finding that Mr Uelese would be unlikely to reoffend if released into the community.
Taking all this into account, I conclude that there is a significant risk of substantial harm to the Australian community should Mr Uelese be released into that community in the near future and without further rehabilitative treatment. The risk to the Australian community should Mr Uelese be released weighs heavily against a decision that his visa not be cancelled.
B. PRIMARY CONSIDERATION (b) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 9.2 of Direction No. 65 provides further guidance in consideration of this question.
I must make a determination about whether cancellation is, or is not, in the best interests of each child under the age of 18 years. On the evidence of Mr Uelese I am satisfied that there are six such children in Australia whose interests must be considered. The consideration is to be in respect of each child individually to the extent that his or her interests may differ.
Sub-paragraph 9.2(4) sets out factors which must be considered where relevant. It provides:
In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fill a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
On the basis of the evidence of Mr Uelese, Ms Fatai and Mr Probets I am satisfied that it is in the best interests of each child that Mr Uelese’s visa not be cancelled and that he be free to live in the Australian community as part of their family unit. The Minister agrees. My reasons for reaching this conclusion follow.
I accept that both Mr Uelese and Ms Fatai intend to provide the best environment for their children they are able and that Mr Uelese intends to provide financial support for all his children when he is able to obtain employment. I am satisfied also that he intends to assist Ms Fatai with the daily care of their four children and that he will be engaged in their sporting activities. Whilst his contact with his two sons of his relationship with Ms Vakauta would be likely to be more limited, I am satisfied on the basis of his evidence that he does intend to maintain contact with them.
Mr Uelese had contact with all of his children except his youngest prior to his being imprisoned. However the relationship with Ms Fatai was unsettled and for much of this time he lived with his parents nearby. After their relationship ended in 2006 Mr Uelese formed a relationship with Ms Vakauta and their two sons were born. This relationship ended after about three years. In 2010 the relationship with Ms Fatai resumed briefly before he was taken into custody.
Notwithstanding the intentions of Mr Uelese, there are considerations which weigh against the likelihood that he will provide the security and family life commonly provided by a father for his child.
Although both Mr Uelese and Ms Fatai presently intend to marry when Mr Uelese is released from detention, their past relationship has encountered many difficulties. They have lived together for only short periods from the time their first child was born in 2000 and Mr Uelese was taken into custody in 2010. Although Ms Fatai says that the relationship is now strong, in October 2012 when referring to their relationship, she said “we’ve been off and on, you know. That’s why it hasn’t been stable yet.” [32]
[32] Exhibit R3 p.72.
Although Mr Uelese says he has matured and now wishes to care for his children, it must be taken into account that he has been a father since 2000 and in that time he has committed the various offences which have given rise to the situation in which he now finds himself. During that time he gave little, if any, consideration to the well-being of his family.
Ms Fatai says that should Mr Uelese be required to return to New Zealand or Samoa, neither she nor the children will live with him. This is in contrast with her intention in October 2010 when she said that she and the children would be likely to travel to New Zealand with Mr Uelese. She now says that she would not be prepared to forego the support of family and friends in Australia or to take the children from the schools they presently attend. They will not be able to afford to travel to spend time with him. Contact would be limited to telephone or Skype.
Consideration of the interests of individual children
Mr Uelese’s eldest daughter aged 14
Ms Uelese lives with her mother and three siblings. She is in
year 9 and has part-time employment. She contributes about one half of her earnings to the maintenance of the family. She assists her mother in caring for her siblings.Ms Uelese provided a statement dated 13 August 2015.[33] In that statement she spoke of her love for her father and that, even though he was in detention, he was able to provide emotional support for the family. She continued:
If my father was deported to New Zealand it is going to be more difficult this time round for me and my siblings as we have already said goodbye once and are not ready to say good bye for good this time as we won’t be able to move to nz with him as we are already settled here and have no immediate family or friends in nz. My siblings and myself are happy with the schools we are attending at the moment and don’t want to start all over again in a total [sic] different country. Also this year I have just started working for the first time ever as a parttime employee.
[33] Exhibit A12.
Ms Fatai said that Ms Uelese has been finding it hard to juggle work, school and sport and helping care for her siblings. She often asks when Mr Uelese is coming home and appears to miss him.
Mr Uelese’s eldest son, R, aged 11
R is in Year 5 at school. Ms Fatai says that he is not coping well at school and attributes this to the absence of his father over the last five years; R is very close to his father. Ms Fatai is concerned that R’s behaviour will continue to worsen if Mr Uelese is unable to live with them and help in disciplining their son.
Mr Uelese’s daughters aged 9 years and 21 months
Ms Fatai gave evidence that these children are too young to understand the situation with their father. The elder of the two children appears to miss her father and often asks when he will be coming home.
Mr Uelese’s sons aged 7 and 8, the children of Ms Vakauta
Mr Uelese occasionally contacts these children by telephone and at times they have visited him at the detention centre. Ms Fatai has observed all the children together at the centre and says they interact well with one another and with their father.
I have very limited information as to the circumstances of these children.
Conclusion regarding the children’s interests
I accept the children have a natural affection for their father that, no matter the period of absence or limitations to contact, would cause them to wish for his release and for him to return to the family home. The children are young, and if Mr Uelese was able to act as he says he will, he could play a positive parental role in their lives for many years to come. Unfortunately, notwithstanding Mr Uelese’s best intentions, his role as a positive parental figure is largely untested. He has spent a significant part of his children’s lives either incarcerated or detained. How he would respond to the daily challenges of fatherhood is mostly unknown.
As already stated, Mr Uelese’s prior conduct raises significant concerns for the safety of the Australian community. His propensity for violence, including toward the children’s mother, is also concerning. Any future criminal or other serious misconduct, whether directly or indirectly involving his family, could have a serious negative impact on their wellbeing.
I accept that being separated from their father causes some difficulty for the older children, however Ms Uelese has presented as a responsible young girl who attends school, works part time and assists her mother with the care of her siblings. I am not convinced the separation from her father has had a significant negative effect on her so far. Whilst Mr Uelese’s eldest son may have some difficulties at school, there is no evidence upon which I can be satisfied this behaviour will worsen without Mr Uelese’s direct parental involvement. I accept that Ms Fatai feels she would be assisted by Mr Uelese’s more active participation in their son’s upbringing.
If Mr Uelese was required to return to either New Zealand or Samoa, it should not mean that he would lose all contact with the children or that he would be unable to contribute to their support. However they would not have the benefit of their father’s presence and, so far as four of the children are concerned, his living in a family unit with them is important.
With the reservations outlined above I am satisfied it is in the best interests of the children for Mr Uelese’s visa not be cancelled. This consideration is significantly in favour of a decision that Mr Uelese’s visa not be cancelled.
C. PRIMARY CONSIDERATION (c) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 9.3 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself.
Clearly Mr Uelese has not met the expectation that as a non-citizen he will obey the laws of this country. Of the 17 years he has spent in Australia, almost six of those years have been spent in some form of detention. In the time he lived in the community he has committed the serious offences to which I have referred, involving physical violence and the supply of drugs for purely monetary gain.
In making the Direction, the Minister has made it clear that “the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” [34] The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding.
[34] Paragraph 6.2 General Guidance.
It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes: see Principles sub-paragraph 6.3(2).
D. OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65
D1. The strength, nature and duration of Mr Uelese’s ties to Australia
Paragraph 10.2 provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia;
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
It is to be noted that the provisions of this paragraph reflect the principles at paragraph 6.3, to which I have already referred.
Mr Uelese came to Australia as a young teenager. He has resided in this country for 17 years, a significant part of that time being spent in prison or in immigration detention. He was still a minor when he committed his first offence, only 17 months after arriving here. All his offences were committed within the first 13 years of his residency. Considering this history little weight can be given to the time in which Mr Uelese has been a resident of Australia.
Prior to his imprisonment, Mr Uelese had intermittent employment. Through this employment he made some contribution to the Australian community, but it was limited. I have taken into account also the evidence of Pastor Waininau that Mr Uelese assisted detainees of the detention centre but I have very little information as to the nature and extent of this assistance. Pastor Waininau indicated that Mr Uelese encouraged detainees to attend Bible classes and Church services. Overall, Mr Uelese’s positive contribution to the Australian community should be given minimal weight.
I am satisfied that Mr Uelese has strong and lasting family links and some social links with Australian citizens. Both his immediate and his extended family are citizens of Australia and reside here. Friends, including the family of Ms Fatai and former workplace colleagues, also are Australian citizens or have a right to remain in Australia indefinitely. However I take into account that the time Mr Uelese has spent in prison and in immigration detention has affected these links.
The time spent by Mr Uelese out of the community has limited the development of his social links and has affected the nature of his relationship with Ms Fatai and his children. Although Ms Fatai has taken her children to see Mr Uelese regularly, I am satisfied that his contact with his two sons aged seven and eight has been limited.
D2. Impact on Australian business interests
Paragraph10.3 provides:
Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Although Mr Uelese has offers of employment in two businesses should he be released, there is no evidence that either business would be affected if his employment does not eventuate. This consideration is of no weight.
D3. Impact on victims
Paragraph 10.4 provides:
Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
Five people have been injured by Mr Uelese’s criminal conduct. The only direct evidence I have of the impact of this is that of Ms Fatai. She says she has forgiven him and believes that he will not repeat the assault upon her.
Ms Fatai said that her mother has forgiven Mr Uelese also. Ms Fatai’s mother did not give evidence nor did she provide a statement. There was no explanation for this. However I am satisfied that the assaults on these victims had no long-term impacts.
The victim of the assault in 2005 suffered blows to the head and was conveyed to hospital. I have no further evidence as to the impact of the offence on this victim.
The injuries suffered by one of the victims of the offence committed by Mr Uelese on 1 January 2010 included bruising to the right eye, bruising to the left forehead, fracture of the nasal bone, blurred and double vision and laceration to the thigh. The second victim suffered lacerations to his face and head. Other than medical opinion at the time of sentencing that the victim’s double vision was likely to be permanent, I have no evidence as to whether either of these victims suffered ongoing effects of their injuries.
D4. Extent of impediments if removed
Paragraph 10.5 provides:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
Mr Uelese is young and in good health. There are no substantial language or cultural barriers to his returning to either New Zealand or Samoa and I am informed that he has the choice of the country to which he would return.
There is no specific evidence of the support available in either country, but I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia.
TAKING THE RELEVANT CONSIDERATIONS INTO ACCOUNT
The facts of this matter present a very sad and very difficult situation. Sad, because Mr Uelese’s conduct has put his six young children at the risk of losing much of the positive influence of their father. I am satisfied that despite Mr Uelese’s unfortunate record, he has much he can contribute to the upbringing of his children. Difficult, because the need to protect the Australian community conflicts with the interests of six young children.
Taking into account all of the considerations and guided by the principles set out in Direction No. 65, I have reached the conclusion that the degree of the risk of Mr Uelese’s reoffending and the serious consequences which could arise in those circumstances, outweigh all considerations in favour of Mr Uelese’s visa not being cancelled. Of particular concern is the violent nature of Mr Uelese’s offending and the limited rehabilitation which he has undertaken. I therefore conclude that the risk of future harm which would be incurred if Mr Uelese was allowed to remain in Australia is unacceptable and that he should forfeit the privilege of continuing to hold a visa enabling him to reside in this country.
CONCLUSION
The reviewable decision made 3 September 2012, being the decision of the Minister for Immigration and Citizenship to cancel Mr Uelese’s Class TY Subclass 444 Special Category (Temporary) visa, will be affirmed.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President
J W Constance...............................................................
Associate
Dated 23 September 2015
Date(s) of hearing 2 - 9 September 2015 Representative for the Applicant A Rose, Counsel Representative for the Respondent A Markus, Counsel
ANNEXURE
Excerpt from the sentencing remarks of Her Honour Judge Ashford in the District Court of New South Wales dated 6 December 2011
The agreed facts giving rise to the offence are as follows and encompass all three offenders. All of the offending occurred on the morning of New Year's Day 1 January 2010. Those agreed facts are as follows: Conrad Ta'akimoeaka and his wife, Carla Morgan, lived at 18B McLaren Street Blackett with their two year old daughter. From around 9pm on 31 December 2009 they had some relatives and friends around for a New Year's Eve party including Timothy Moa, Benjamin Setu, Rachel Setu and Martin Salt, with a two year old child asleep in the house.
At some stage during the night Timothy Moa and Martin Salt were in the front yard having a cigarette. Four males of Pacific Islander appearance walked down McLaren Street. Martin Salt yelled out something offensive to those passers-by, those words being to the effect of "motherfuckers". One of the passers-by yelled back, "What did you say?" and Timothy Moa yelled out "Nothing, we didn't say anything". The four passers-by walked down McLaren Street towards Hales Place which is where the Uelese family lived and also where another backyard party was taking place. Timothy Moa and Martin Salt returned to their backyard party.
Carla Morgan and Rachael Setu went inside the house to sleep, leaving the males in the backyard. About ten minutes later they heard the sounds of smashing glass and a lot of yelling coming from the front yard. Carla Morgan went to the hallway and saw that a window next to the front door had been smashed. Rachael Setu ran to the backyard and called out to the males.
Conrad Ta'akimoeaka, Timothy Moa and Martin Salt ran to the front yard along the side of the house. Benjamin Setu ran through the house and then opened the front door. Collectively, the Crown witnesses described a group of ten to fifteen people in the front yard of those premises in McLaren Street.
Timothy Moa saw a large number of males he did not know in the front yard and then Benjamin Setu came out of the front door. One of the unknown males punched Benjamin Setu to the head and he fell to the ground. Timothy ran to help him and he was punched to the head and fell to the ground. He did not say anything, hit anyone, or threaten anyone. Timothy Moa thinks that one of the male attackers was from the group he had seen earlier that night when the abusive comments had been yelled. Mr Moa felt a lot of kicks and hits to his head and face and remained on the ground with his face and head being kicked and stomped on by a number of people until the police arrived.
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