Umi v Minister for Home Affairs
[2019] AATA 2316
•31 July 2019
Umi and Minister for Home Affairs (Migration) [2019] AATA 2316 (31 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2807
Re:Saoloapu Umi
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:31 July 2019
Place:Melbourne
The Tribunal affirms the reviewable decision, being the decision of a delegate of the Minister for Home Affairs on 14 May 2019 not to revoke the cancellation of Mr Umi’s Class AS Subclass 801 (Spouse) visa.
.........[sgd]...............................................................
Senior Member A. Nikolic AM CSC
MIGRATION – visa cancellation – citizen of Samoa - failure to pass the character test – criminal history between 1999 and 2013 – convictions for multiple violent offences – considerations at Part C of the Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Crimes Act 1958 (Vic)Sentencing Act 1991 (Vic)
CASES
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
DKXY v Minister for Home Affairs [2019] FCA 495
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Saoloapu Umi v The Queen [2013] VSCA 211
Director of Public Prosecutions v Jody Lee Downe & Saoloapu Umi [2013] VCC 734
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213ZNBG v Minister for Home Affairs [2019] AATA 1872
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Australian Government, Department of Foreign Affairs and Trade, Samoa (20 December 2018) Smartraveller < FOR DECISION
Senior Member A. Nikolic AM CSC
31 July 2019
INTRODUCTION
The applicant, Mr Saoloapu Umi, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class AS Subclass 801 (Spouse) visa (the visa).[1]
[1] Exhibit R1, 165-167.
The hearing was held in Melbourne on 22 and 23 July 2019. Mr Umi appeared in person and represented himself at the hearing. The Minister was represented by Mr David Brown from the Australian Government Solicitor.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
Mr Umi is a 43-year old citizen of Samoa.[2] He first arrived in Australia in October 1995 on a Tourist Visa at the age of 19,[3] and has since held bridging, temporary partner, and permanent partner visas.[4]
[2] Ibid, 50; 69.
[3] Ibid, 107.
[4] Ibid, 108-109.
Mr Umi married an Australian citizen in 2006[5] and has held a spouse visa since February 2008.[6]
[5] Ibid, 93.
[6] Ibid, 124.
Mr Umi’s criminal convictions span a 14-year period between August 1999 and August 2013, during which he has been sentenced to several periods of imprisonment.[7] Mr Umi is currently imprisoned as a result of convictions on 13 August 2013 for Armed Robbery, Make Threat to Kill, Prohibited person possess a firearm, Unlawful assault, and several other offences.
[7] Ibid, 15-18.
On 2 February 2017, Mr Umi’s visa was mandatorily cancelled under s 501(3A) of the Act.[8] He was invited to make representations to have the visa cancellation decision revoked, and did so on 17 February 2017 within the period and in the manner specified under the Act.[9]
[8] Ibid, 124-129
[9] Ibid, 50-67.
After considering Mr Umi’s representations, a delegate of the Minister decided not to revoke the mandatory cancellation of Mr Umi’s visa.[10]
[10] Ibid, 165-167.
By application dated 21 May 2019, Mr Umi applied to the Administrative Appeals Tribunal for a review of the Minister’s decision,[11] stating in the ‘Reasons for application’ section:
I want to stay in Australia to be with my 5 kids and provide them with support...
[11] Ibid, 1-6.
Mr Umi received the non-revocation decision on 14 May 2019.[12] Consistent with s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 6 August 2019.
[12] Ibid, 4.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if a delegate of the Minister decides under s 501CA(4) not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act 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)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[13]
[13] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) 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.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR UMI PASS THE CHARACTER TEST?
Mr Umi has been sentenced to a term of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds he does not pass the character test.
ISSUE TO BE RESOLVED
It follows that what remains to be determined is if there is ‘another reason’ to revoke the visa cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[14] which the Tribunal adopts:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
[14] [2016] FCA 1166 at [38].
EVIDENCE BEFORE THE TRIBUNAL
The only exhibit taken into evidence was the “G-documents” numbering 445 pages.
Previous counselling by immigration authorities
The Tribunal notes a letter in evidence dated 30 January 2008 from the then Department of Immigration and Citizenship. It was addressed to Mr Umi and sought to formally counsel him in the following terms:
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 510 of the Act. I note that the consequences of visa cancellation…include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.[15]
[15] Exhibit R1, 122-123
When questioned about this letter during the hearing, Mr Umi claimed he had never received it and had no knowledge of it. After considering the available evidence, the Tribunal has decided to afford this letter no weight because:
(a)the Tribunal accepts Mr Umi’s unchallenged evidence that he moved between addresses during this period; and
(b)there is no acknowledgement signed by Mr Umi, or other reliable evidence to the effect that he received the letter.
National Police Certificate and Sentencing Remarks
A table summarising Mr Umi’s National Police Certificate is annexed to these reasons. It discloses that his initial convictions between 1999 and 2002 were dealt with by way of community orders, unpaid community work, and fines as follows:
(a)13 August 1999, Melbourne County Court: Criminal damage by fire (arson) and Possess cannabis, for which Mr Umi received a 12-month community based order (“CBO”), 100 hours of unpaid community work, and a fine;
(b)2 May 2001, Broadmeadows Magistrates’ Court: Two charges of Assault police / person assisting police, for which Mr Umi was fined $1000; and
(c)10 October 2002, Melbourne County Court: Recklessly cause injury, for which Mr Umi received a 12 month CBO and 150 hours of unpaid community work.
Mr Umi received his first sentence of imprisonment (aggregate of four months) on
12 March 2004, following convictions for: three charges of Recklessly cause injury resist police; three charges of Unlawful assault; Make threat to kill; and Act in disruptive manner – police gaol. He was also fined $750 for two charges of being drunk in a public place, stating a false name when requested, and using threatening words in a public place.On 24 June 2004 Mr Umi received a concurrent total sentence of 12 months imprisonment following convictions for: Intentionally cause serious injury (nine months); Intentionally cause injury (six months, five months of which was concurrent); Assault police on duty and Criminal damage (intent damage / destroy) (three months imprisonment on each charge concurrent); and Common law assault (CBO for 12 months).
On 14 December 2004 Mr Umi was convicted of Unlawful assault. In October 2005 he appeared in the Melbourne County Court on two occasions, where he was found to have breached a CBO from October 2002 and a suspended sentence from June 2004. The Court reinstated the suspended sentence and convicted him of breaching a CBO.
On 13 December 2005 Mr Umi was convicted of Recklessly cause injury and Unlawful assault, for which he was sentenced to an aggregate of three months’ imprisonment.
On 28 June 2007 Mr Umi was convicted of: two charges of Intentionally cause injury; Unlawful assault; Criminal damage (intent damage / destroy); two charges of Act prejud sec / good order / management gaol; and two charges of Drunk in a public place, for which he received an aggregate sentence of seven months imprisonment, an aggregate fine of $1500, and was required to pay compensation of $2147.
On 11 February 2008 Mr Umi was convicted of Intentionally cause injury, for which he received a sentence of five months imprisonment, which was wholly suspended for 12 months. He was again convicted of Intentionally cause injury on 5 February 2010, receiving a sentence of 12 months imprisonment, suspended for 12 months.
On 22 April 2013 Mr Umi was convicted of Resist police and Possess drug of dependence – prescription drug, for which he received a sentence of 14 days imprisonment, a $500 fine, and $107.80 in statutory costs.
29 May 2013 Convictions
On 29 May 2013 Mr Umi was sentenced for his most serious convictions as follows:
Charge Offence Maximum Sentence Cumulation 1 Armed Robbery [s 75A Crimes Act 1958] 25 years 7 years Base 2 Making a threat to kill [s 20 Crimes Act 1958] 10 years 3 years - 3 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years 3 years 1 year Summary charges 4 Assault with weapon [s 24 Summary Offences Act 1966] 12 months 6 months - 9 Possession ammunition without licence [s 124 Firearms Act 1996] 40 penalty units Convicted / discharged - 10 Use drug of dependence [s 75 Drugs, Poisons and Controlled Substances Act 1981] 12 months Convicted / discharged - 14 Unlicenced driving [s18 Road Safety Act 1986] 3 months 1 month - 17 Use threatening words in public place [s 17 Summary Offences Act1966] 3 months 14 days - 18 Deal with property suspected proceeds of crime [s 195 Crimes Act 1958] 2 years 2 years - Total Effective Sentence (TES) 8 years Non-Parole Period (NPP) 5 years Pre-sentence Detention Declared 169 days 6AAA Statement[16] TES 10 years 6 months NPP 7 years
[16] Sentence that would have been imposed but for Mr Umi’s plea of guilty.
Sentencing Remarks
The total effective sentence awarded at Mr Umi’s trial was eight years imprisonment, with a non-parole period of five years.[17] The sentencing judge found that Mr Umi:
[17] Exhibit R1, 19-32, Director of Public Prosecutions v Jody Lee Downe & Saoloapu Umi [2013] VCC 734.
(a)had worked for a period as a security guard or bouncer at a hotel in Melbourne and also moonlighted as a security guard for drug traffickers doing drug deals;
(b)had a history of alcohol and drug abuse;
(c)had been ‘out of trouble essentially’ between 2008 and November 2012, although had ‘been dabbling in drugs and the drug trade in that period;’
(d)with a co-offender ‘hatched a plan’[18] to carry out an armed robbery in the early hours of 24 November 2012 at a service station;
(e)was armed with a shotgun during the armed robbery;[19]
(f)made a threat to kill the attendant and money was stolen from the till;[20]
(g)hid the shotgun used in the armed robbery in the ceiling of his ex-partner’s house;
(h)made ‘full admissions to the armed robbery,’ after being arrested, but His Honour stated: ‘It is clear you did not tell the truth, the whole truth, about the armed robbery to the police at that time;’[21]
(i)threatened a police officer waiting to transport him following the trial by stating: ‘When I get out in seven or 10 years you had better be on holidays.’[22] His Honour noted this did not give the impression of remorse on Mr Umi’s part, but nevertheless accepted Mr Umi was remorseful for his conduct; and
(j)contributed to ‘very lasting effects’ on the service station attendant;
[18] Ibid, 22 [13].
[19] Ibid, 22 [14].
[20] Ibid.
[21] Ibid, 22 [16].
[22] Ibid, 23, [18].
Based on a psychological report prepared for the Court dated 18 April 2013, His Honour considered there was support for the proposition that Mr Umi had ‘attempted to address a number of underlying problems…anger management and so on…whilst…in prison [and] remand,’ which suggested Mr Umi was taking his rehabilitation seriously. His Honour concluded that Mr Umi was not as ‘deeply involved in drug abuse’ as his co-offender and that he had ‘every chance’ of getting himself ‘out of that particular pit.’ His Honour also referred to a number of ‘assay results’ suggesting Mr Umi had been drug free since being imprisoned on remand. His Honour considered the psychologist’s opinion, that Mr Umi’s personality issues and mental impairments reduced his moral culpability, was ‘nonsense.’
Court of Appeal
Mr Umi’s appeal against the severity of his sentence was upheld by the Supreme Court of Victoria, Court of Appeal (“Court of Appeal”) on 13 August 2013. This had the effect of reducing his sentence to seven years and six months imprisonment, with a non-parole period of four years and six months.[23] While reducing Mr Umi’s original sentence and non-parole period by six-months, the Court held that a principal factor counting against a substantial reduction in penalty was Mr Umi’s extensive criminal record dating back to 1999. This has included some 18 appearances before the courts, including four appeals to the County Court and 15 separate convictions for assault, recklessly cause injury, intentionally cause injury, threat to kill, and intentionally cause serious injury. The Court of Appeal stated in its reasons for decision at [21] that Mr Umi:
(a)was more mature than his armed robbery co-offender (aged 36 as against 24);
(b)provided the weapons and motor vehicle used in the armed robbery;
(c)used the shotgun in committing the armed robbery; and
(d)had more serious prior convictions.
[23] Ibid, 33-46, Saoloapu Umi v The Queen [2013] VSCA 211.
Their Honours considered Mr Umi’s offending to be:
…a very serious armed robbery involving the terrifying use of both a shotgun and knife. It is true, as counsel for the applicant submitted, that the shotgun was neither discharged nor loaded and that the victim was not injured but the offending comprised a direct, violent and overwhelming confrontation by two offenders, each apparently heavily armed.
…
Moreover the offence of possession of a firearm by a prohibited person was also a serious offence having regard to the extent and nature of the applicant’s prior record…
Conduct While Imprisoned
The Tribunal notes a two-page memorandum in evidence, dated 17 October 2017, relating to Mr Umi’s imprisonment.[24] It records that Mr Umi ‘has a total of 17 incidents since the 19.01.2004 up until 17.10.2017,’ comprising: six assault-related incidents; seven positive drug incidents (three since January 2017); one ‘possession of tobacco’ incident; one ‘good order’ incident; one ‘injury incident; and one ‘property facility’ incident. Nine of these incidents occurred since Mr Umi was last imprisoned.
[24] Ibid, 47-48.
The memorandum also notes Mr Umi has been in a Head Billet position for three years, requiring him to keep the accommodation pod tidy and to ensure that ‘all billets in this pod are doing their work to an acceptable standard.’ Mr Umi is noted to have a good work ethic and to play a role ‘in looking after the young Islander prisoners…trying to make sure they are being respectful to the unit staff and trying to stay out of trouble.’
The memorandum records a number of vocational courses and rehabilitative programs completed by Mr Umi during his imprisonment, certificates for which are in the G-documents as follows:
(a)Certificate II in Engineering;[25]
(b)Release related harm reduction program;[26]
(c)High Intensity Violence Intervention Program;[27]
(d)Talking Change Program;[28]
(e)Certificate I in General Education for Adults;[29]
(f)Certificate II in Cleaning Operations;[30]
(g)Certificate II in Hospitality – Kitchen Operations;[31] and
(h)Introduction to Anger Management Program.[32]
[25] Ibid, 94.
[26] Ibid, 99.
[27] Ibid, 100.
[28] Ibid, 101.
[29] Ibid, 95.
[30] Ibid, 96.
[31] Ibid, 97.
[32] Ibid, 98.
Mr Umi’s evidence
The Tribunal has had regard for Mr Umi’s written submissions in the G-documents. This includes when requesting revocation of his visa cancellation in 2017,[33] and a more recent revocation request dated February 2019.[34] The principal emphasis in these submissions is the interests of five biological children Mr Umi has fathered while living in Australia.
[33] Ibid, 50-62; 83-87.
[34] Ibid, 63-81; 90-92.
In his oral evidence, Mr Umi gave an account of his early life in Samoa. He claimed to have been raised in Apia by his grandmother’s sister, her husband, and with their eight children. When asked why he had not been raised by his biological parents, Mr Umi said he never knew his father and for reasons he was not aware, his mother lived on another island. Mr Umi said he only become aware that he was not being raised by his parents at approximately the age of six and that he found aspects of his childhood difficult.
Mr Umi said he attended school in Apia till Year 11, recalling that he was good at mathematics, passing Year 12 maths while still in Year 11. Mr Umi said he also excelled at rugby and amateur boxing. He referred to his school days in Samoa as a ‘happy environment,’ in which his capabilities were rewarded through appointment as a prefect.
Mr Umi claims that while attending school he concurrently worked in plantations from the age of six. He claims that this work was in part directed to paying his school fees and that the other children within the family he was being raised in were not required to concurrently undertake the same work. He attributed the physical strength he developed to hard physical labour in the plantations, and suggests this helped him become the best rugby player at his school. Mr Umi said he left school after completing Year 11 to work in the plantations full-time. He did not go to college because it was unaffordable for his family.
Mr Umi explained that he arrived in Australia after an invitation from an Australian backpacker he met in Samoa. He had helped the backpacker with her travel around Samoa, and she had subsequently invited him to visit Australia at her expense. Mr Umi was then 19 years of age. He lived in Melbourne, worked as a landscaper, and played rugby in under-21 and senior teams.
In 1997 Mr Umi said he met an indigenous Australian woman with whom he formed a relationship (“Partner A”). They had two children in 1998 and 1999. To support his family, Mr Umi worked as a storeman in a freight company. He submits that job lasted for approximately two years and ended in 1999, soon after his arson conviction in August 1999. When asked to elaborate on the circumstances of the arson conviction, Mr Umi said he was present at the time of the arson. Although he ‘put his hand up’ as the person responsible for setting a car on fire, he now claimed he was not responsible. When asked why he pleaded guilty to a crime he did not commit, Mr Umi responded he ‘didn’t know much better at the time.’
Mr Umi said he split with Partner A in approximately late 2000, and formed a relationship with another woman he met at a friend’s birthday party (“Partner B”). He and Partner B had a child in 2002. Mr Umi said that during his relationship with Partner B he ‘tried for one more chance’ to pursue a career in rugby. He travelled to Sydney in 2001 and lived there for six to eight months while Partner B remained in Melbourne. He trialled with a feeder club for a first grade rugby league team, but claims he broke his arm during the trial game and ‘ended up back in Melbourne.’ Mr Umi said he subsequently found work in a Melbourne packaging factory and worked there for approximately three to four years. Mr Umi said his relationship with Partner B ended in or about late 2002, but he remained in contact with her and their child.
Mr Umi states he returned to Partner A in late 2002, hoping they could rekindle their relationship. His work responsibilities at the time included running a warehouse with ‘freight going in and out, unloading containers.’ That job ended in late 2004 when Partner A moved to regional Victoria to be closer to her parents. Mr Umi accompanied her. They married in 2006 and had two more children in 2008 and 2010. Mr Umi says the family moved again to another location in regional Victoria and over time, his relationship with Partner A deteriorated. He explained they were ‘arguing too much,’ which he attributed to a lack of work and constant disputes with Partner A’s parents, particularly when alcohol was involved. Mr Umi said he worked on a fishing boat for about a year but it did not work out. He eventually ended his relationship with Partner A and moved out of the family home in 2011.
Mr Umi was taken through frequent references in police reports to incidents of domestic violence.[35] He could not recall many of the incidents or the instigating circumstances. When asked, about police attendance at the family home in December 2010—during which Mr Umi was reportedly armed with a machete, threatened to ‘slice up cops if they come here,’ broke down a toilet door behind which Partner A was sheltering, and ‘hit her about 10 to 15 times to the head’[36]—Mr Umi responded: ‘Truth is I can’t remember anything…Punching her in the head 15 times is not right.’
[35] Ibid, 224-241.
[36] Ibid, 226-228.
When asked whether he punched Partner A at all and if so how many times, Mr Umi responded: ‘I can’t remember what happened that night.’ He also had no memory of hitting Partner A’s mother, as recorded in the police incident report. Mr Umi was asked about a police report referring to claims by another woman that she had ‘suffered mental and physical abuse’ from Mr Umi during the course of their relationship and he ‘would often hit her.’[37] Mr Umi said he had been in a sexual relationship with the woman for about 12 months. When asked about the woman’s claims relating to mental and physical abuse, Mr Umi responded: ‘I’m not sure.’ He denied the references in the police report, however, about making threats to kill the woman, or physically abusing her, or sending her text messages to the effect that she should kill herself. Mr Umi also denied being contacted by police after this incident, or that he had agreed to attend the police station to be served with a Family Violence Safety Notice.[38]
[37] Ibid, 222.
[38] Ibid.
Mr Umi was taken through a number of convictions where he assaulted police or resisted arrest. He claimed that his perspectives about police changed in or about 1997. Mr Umi explained he had been living happily with Partner A at her parent’s house. He said that while on a run, the police apprehended him close his home and severely beat him with Yellow Pages phone books. He stated that he was in bed for two weeks due to injuries from that incident and was coughing up blood. Mr Umi said he did not report the incident, but could not stand the police after that.
Mr Umi frequently stated he could not recall why he had fought with police or resisted arrest. He did not remember making threats to police or pleading guilty to ‘Recklessly cause injury’ and three charges of ‘Resist police’ in March 2004. This was the first sentence of imprisonment he served. Mr Umi described it as ‘very hard.’ He was 28 years of age at this time and said he ‘felt lost’ in prison while away from his family. When asked what lessons he had learned during that first sentence, Mr Umi responded: ‘I don’t know – it was different – I can’t put it into words. At that time you think you are unbreakable.’ Mr Umi denied the reference in a police report that he had bitten ‘a chunk’ out of a policeman’s arm during a struggle,[39] claiming he had only bitten the policeman’s hand because it was in his mouth. When asked if he remembered smashing up the interview room as claimed in the police report, Mr Umi said he couldn’t because he had ‘a bit to drink.’
[39] Ibid, 205-206.
When asked about another incident in October 2006[40] and why he had started fighting with police, Mr Umi responded: ‘I don’t know. Maybe they act for one side. I thought they looked at me differently from the other one.’ When asked if he remembered spitting at a police officer as recorded in the police report, Mr Umi replied ‘No.’ When asked if he had stripped off naked in the cells, masturbated to the cameras and urinated on the walls, door and floors, and pressed the duress button constantly as recorded in the incident report, Mr Umi responded: ‘I don’t remember.’ In relation to his conviction for threatening a policeman after being arrested for armed robbery by stating: ‘When I get out in seven or 10 years you had better be on holidays,’ Mr Umi said he could not remember saying that, but if he had, he didn’t mean anything by it.
[40] Ibid 210-211.
Mr Umi was taken through other violent convictions,[41] including when he had become angry and assaulted a neighbour. When asked about the circumstances, Mr Umi replied: ‘I don’t know, he walked across the road and said something about the rubbish bin. I told him to pick up the bin. He walked away and I backhanded him.’ Mr Umi said he suspected the person he assaulted had been filling up his recycling bin without permission.
[41] Ibid, 202; 205-206.
When asked if he had also assaulted an 81-year-old victim while both had been staying at the same hotel, by hitting him for one to two minutes,[42] Mr Umi denied hitting the victim, claiming he had only pushed the victim and closed the door to the victim’s room.
[42] Ibid, 215.
When asked about the armed robbery offence in November 2012, Mr Umi’s explanation was inconsistent with aspects of the Court’s findings and other evidence before the Tribunal. That included claims about an incidental meeting with his co-accused in the car park of a hotel, that they had ‘found’ a shotgun and knife in a car Mr Umi had borrowed from another person, that the armed robbery was unplanned and was at his co-offender’s instigation and that he ‘didn’t know what he was doing.’
Mr Umi also stated that the transcript of a police interview after his arrest (“the transcript”) was largely fabricated.[43] Mr Umi was questioned about references in the police transcript that were at odds with his current claim that he didn’t know the shotgun was in the car he was driving. He was also asked about references in the transcript where police advised him that three shotguns and a Samsung tablet had previously been stolen from a house.[44] It was further noted in the transcript that Mr Umi had given one of his children a Samsung tablet of the same description. In his oral evidence, Mr Umi insisted he had purchased the Samsung tablet, despite various references in the evidence to him stating he found it, had been given it, or had purchased it from a friend.[45]
[43] Ibid, 331-408.
[44] Ibid 391-392.
[45] Ibid.
Mr Umi claimed that the only response he had given police during the interview was ‘no comment’ and therefore the transcript was fabricated. His evidence, however, was that he had taken Xanax and injected methamphetamine (“ice”) on the day of the robbery, had continued to take drugs after the robbery, and had been found with a needle in his possession when arrested. In response to questions from the Tribunal, Mr Umi conceded that, given his drug problem at the time, it was ‘possible’ he may have provided the responses recorded by police.
Mr Umi stated there were a lot of things he should have challenged during police interviews and court appearances in the past, but his ‘English didn’t allow [him] to challenge.’ When asked by the Tribunal if he had been legally-represented during his court appearances, he agreed that he had, but ‘never understood much at the time.’
Mr Umi agreed that controlling his temper had previously been a significant problem for him. When asked what contributed to his temper issues, he responded: ‘Sometimes the language barrier – they can’t understand what I say, if I can’t understand what they say makes me more angry. Maybe I was an angry person but I didn’t realise that until now.’ When asked what effect intoxication had on him, Mr Umi said it caused him not to remember what he was doing. He described the effect of alcohol as ‘not good at all. I get angry real fast. I don’t know what I’m doing.’
Mr Umi said he had ‘given up drugs and alcohol’ while imprisoned by attending rehabilitation courses and through voluntary participation in the Methadone Program during 2014 and 2015. He stated that he would definitely stay away from drugs and alcohol in the future, because they had ‘destroyed [his] life in the past.’ Mr Umi said he now spends a lot of time talking to and mentoring other inmates, particularly those with Islander backgrounds. He hosts a meeting every Wednesday to ensure fellow inmates have a forum to discuss their issues and don’t harm themselves. He stated: ‘My door is open to everyone to share and talk things out.’ Mr Umi said he was now older, smarter and a ‘changed person,’ who was committed to getting out, finding work, supporting his children, and living a law-abiding life. He had learned to control his anger through rehabilitative course, which had taught him to ‘think before you do anything,’ and by ‘respecting people and they will respect you.’ He said the best thing to do when angry was to ‘walk away’ and ‘get some exercise.’ Mr Umi apologised for his past conduct, stating he ‘had done very bad things in the past’ but ‘should have known better’ and ‘had learned a lot’ from these negative experiences. If released, he wanted to contribute positively to the community, including by ‘coaching young kids playing rugby.’ When asked about his risk of reoffending Mr Umi contended it was: ‘zero percent.’
When asked about the contents of a corrective services memorandum during his current period of imprisonment,[46] Mr Umi agreed it was accurate. He said the assault incidents involved him and other inmates. He claimed the positive drug incidents all related to the opioid Buprenorphine, which he referred to as ‘Bupe.’ Mr Umi said that since ending his participation in the Methadone Program in 2015, he had been given Bupe by other inmates only on occasions to ‘have a night out.’ In response to questions from the Tribunal about how he could claim to have given up illicit drugs while still using Bupe, Mr Umi said he had only used Bupe ‘once in a blue moon,’ submitting: ‘I said to myself, by the end of this year you’ll be clean.’ When it was put to Mr Umi that the Tribunal had to make a decision on his application by 6 August, which was before the end of 2019, and it was clear he was yet to sever his reliance on illicit drugs, Mr Umi said he would cease his illicit drug use earlier if required. He stated: ‘Maybe I have a little bit of rehab due to Bupe, but I’ll get clean by the time I get out.’ In response to a later question he stated: ‘I’ll try to clean myself up and stay away from drugs – just go to work and try to enjoy life. You’ll never see me in the system again…I know in my heart I can change…I’ll clean myself up while in jail and get a counsellor…I have to challenge myself to be a better person.’
[46] Ibid, 47-48.
Mr Umi repeatedly expressed the love he has for his children and wanted to remain in Australia to support and look after them. He claims to speak to his children regularly by telephone. The Tribunal notes that four of Mr Umi’s five biological children attended the hearing at some stage to support him. When asked about maintaining contact with his children if repatriated, Mr Umi said he would: ‘try to survive the best way I can’ and, after establishing himself in Samoa, he would explore avenues to remain in contact with them.
When asked about possible repatriation to Samoa, Mr Umi said he was not sure who he would stay with. He had one brief exchange with a step-brother in Samoa after arriving in Australia and no contact with other relatives since. There was no-one he could currently count on for practical or emotional support. When pressed, Mr Umi said perhaps he would stay with ‘some relatives far away from the city,’ but he had not made any enquiries in this regard. When asked about whether he could use his skills in warehousing, fishing and from the vocational courses he had qualified in while imprisoned to seek work, Mr Umi responded that most Samoan fishing businesses were run by families that worked their own boat and he had ‘no idea’ if he could find a job in a warehouse.
In terms of any language or health impediments, Mr Umi said he spoke the Samoan language and there were no health issues preventing his return to full time work. The only medication he currently took was ‘a daily pill for heart pressure,’ but he could not recall the name of the drug.
Letter in support of Mr Umi
There is one letter in evidence, dated 8 March 2017, supporting Mr Umi’s application, which is co-authored by a couple claiming to have known him since an initial association at work in 1995.[47] The authors refer to experiencing shock at news of ‘this crime,’ which they claim is ‘not a reflection’ of Mr Umi’s true nature. The authors do not consider Mr Umi to be a violent person and consider that ‘all he needs is his family friends and love to get him by.’ The authors claim to have exchanged correspondence with Mr Umi during his imprisonment and consider he displays remorse, growth and maturity. They express a willingness to provide him with accommodation if he is released into the community.
[47] Ibid, 106.
This letter is now over two years old and the authors did not appear at the hearing to enable their perspectives or undertakings to be tested through cross-examination. The Tribunal does not accept this letter reflects the author’s knowledge of the totality of Mr Umi’s offending. It is not known what the authors are referring to when they express shock at ‘this crime.’ Moreover, the claim that ‘we don’t see Sar as a violent person’ is inconsistent with the available evidence. Under those circumstances, the Tribunal places little weight on this letter.
Letter submitted on morning of hearing
Approximately an hour before the hearing commenced, the Tribunal’s Registry received an email from Partner B. The email was sent at 08:57am and stated: ‘I only found out yesterday that the hearing is today…Please consider my evidence.’ An unsigned letter was attached to the email, which the Tribunal did not read. At the commencement of the hearing Mr Brown objected to the letter being taken into evidence given the requirement of s 500(6H) of the Act. The Tribunal’s Registry staff subsequently advised that Partner B had sent a further email at 09:09am on the morning of the hearing attaching further documents, which the Tribunal did not read.
The Tribunal notes by way of background that following a Telephone Directions Hearing (“TDH”) on the morning of 29 May 2019, which was approximately eight weeks prior to the commencement of the hearing, Mr Umi was invited to give to the Tribunal and the respondent by 4:00pm on 26 June 2019:
(a)a witness statement from any witnesses proposed to be called at the hearing;
(b)all reports, records and any other documents on which the Applicant intends to rely at the hearing; and
(c)a Statement of Facts, Issues and Contentions.
Mr Umi was also informed both verbally during the TDH, and in subsequent written directions, that under the two-day rule contained in sections 500(6H) and 500(6J) of the Act, the Tribunal could only have regard to information presented orally at the hearing, if that information was set out in a written document given to the Tribunal and to the respondent by no later than two full business days before the hearing commenced.
After it was noted no materials were lodged by Mr Umi prior to 26 June 2019, the Tribunal sent him an email reminder on 28 June 2019. Mr Umi did not lodge any further materials in support of his application prior to the hearing.
The Tribunal declines to consider the correspondence from Partner B lodged on the morning of the hearing because:
(a)It is precluded by s 500(6H) of the Act;
(b)It is procedurally unfair to the respondent that the Tribunal accepts a witness statement and other documents on the morning of a hearing, given that the respondent’s case preparations were concluded in the absence of such materials;
(c)Mr Umi has been on notice since 29 May 2019 about the hearing dates and due dates for submitting material he intended to rely upon. Mr Umi has not requested more time at any stage or the pre-hearing process to lodge further materials;
(d)Mr Umi’s application is an expedited matter in which a decision must be made by 6 August 2019. There was insufficient time to adjourn the hearing by two days to enable the Respondent to consider the new material, and to comply with the requirements of s 500(6H). Moreover, an adjournment on this basis may be seen as an attempt to circumvent a statutory provision of the Act; and
(e)Mr Umi remains imprisoned and it is important that the outcome of his application be determined as soon as possible, while ensuring procedural fairness to both parties.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a 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 seriously.
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) 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);
i) 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 escaped 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.
Tribunal consideration: The nature and seriousness of the conduct
Mr Umi has been convicted of multiple violent offences, including ‘Make threat to kill’ and ‘Intentionally cause serious injury,’ which are considered serious violent offences in Victoria.[48] Mr Umi agreed during the hearing that he had committed domestic violence, but could not remember many details due to being under the influence of drugs or alcohol. He also agreed he had been convicted of offences involving violence against an 81-year-old man and the police. In relation to violence against police, the Tribunal notes frequent references in the evidence to Mr Umi resisting arrest and conducting himself inappropriately following arrest. Examples include:
[48] Crimes Act 1958 (Vic) s 16; s 20.
(a)A Victoria Police Incident Summary Report dated 27 May 2000 states:
He was escorted to the rear of the van where he became violent and resisted police. A struggle ensued, during which [Constable name redacted] was dragged into the rear of the van after [Mr Umi] grabbed the members ASP Baton. The member held onto his ASP as he was dragged into the rear of the van where the struggle continued…[name redacted] went to assist the van crew. [Mr Umi] also attempted to wrench [the Senior Constable’s] firearm from the utility belt, but the member was able to prevent him doing this. At the same time [Mr Umi] had [Senior Constable name redacted] by the throat. After disengaging him and realising that [Mr Umi] had a hold of the baton, OC Spray was deployed into the rear of the van, which initially had no effect as [Mr Umi] covered his face with his jacket. Subsequent sprays were effective and Umi was placed into the rear of the van…and given immediate aftercare…Umi continued to make threats towards members.
(b)A Victoria Police Incident Summary Report dated 7 December 2003 states:
…During this struggle Umi has bitten [Constable name redacted] on the lower bicep of the left arm taking a chunk of flesh…Umi not interviewed due to violent state. During I / V damaged 2 interview rooms, damaging fuse box in first interview room and damaging plaster wall in second…[49]
(c)A Victoria Police Incident Summary Report dated 1 October 2006 states:
Umi…still very non compliant and had to be forcibly restrained and cuffed… Umi…has made threats towards [Senior Constable name redacted] and has then drew back on flem and…spit on [Senior Constable name redacted]…During his time in the cells he has stripped off naked and masturbated to the cameras. He has then urinated on the walls door and floors and pressed duress button constantly[50] (Errors in original)
(d)A Victoria Police Incident Summary Report dated 1 January 2007 states:
Whilst in custody in cell area Umi has scratched cell window with coin he had secreted.[51]
(e)A Victoria Police Incident Summary Report dated 4 June 2012 states:
…Umi would not follow…direction and was placed under arrest for hinder. Umi resisted arrest and was taken to ground and handcuffed on ground.[52]
[49] Ibid, 205-206.
[50] Ibid, 210-211.
[51] Ibid, 212.
[52] Ibid, 218.
Mr Umi explains his persistent violence against police as contributed to by his long-standing drug and alcohol dependence, a short temper, and enduring resentment against police following the previously-mentioned incident in or about 1997.
Mr Umi received sentences of imprisonment in March 2004, June 2004, December 2005, June 2007, February 2008, February 2010, April 2013 and August 2013, although some of these sentences were suspended. At his most recent trial in 2013, Mr Umi was sentenced as a serious violent offender.[53] The Tribunal acknowledges Mr Umi cooperated with authorities and made voluntary admissions about his offending at trial, albeit after initially and falsely blaming his co-offender for the provision of the shotgun used in the armed robbery.[54]
[53] Under s 6A of the Sentencing Act 1991 (Vic) sch 1 cl 3.
[54] Exhibit R1, 42 [31] and footnote 10 in the Court of Appeal’s sentencing remarks.
The Tribunal notes the references in evidence to Mr Umi’s misconduct while imprisoned and his explanations for this misconduct. His involvement in violence and drug-taking behaviour while imprisoned exacerbates concerns about the reliability of his rehabilitative claims and insight.
Tribunal findings: The nature and seriousness of the conduct
Pursuant to paragraph 13.1.1(1)(a) of the Direction, Mr Umi’s violent crimes are viewed very seriously. He continued to commit violent offences despite initial lenient treatment by the Courts between 1999 and 2004. He has re-offended while subject to conditional liberty arrangements and following rehabilitative opportunities. His most serious offending was in 2012, for which he remains imprisoned, after being sentenced as a serious violent offender.
The Tribunal prefers the contemporaneous records compiled by police about Mr Umi’s domestic violence,[55] to Mr Umi’s own uncertain recollections. Pursuant to paragraph 13.1.1(1)(b) of the Direction, Mr Umi’s violent conduct against women is viewed particularly seriously.
[55] Exhibit R1, 203; 205-206;208; 222; 224;225; 226-228; 229; 233; 234; 240.
The Tribunal again prefers the contemporaneous records compiled by police about Mr Umi’s violence against police to his own uncertain recollections. The Tribunal does not accept Mr Umi’s submissions that the transcript of the police interview on 27 November 2012 was fabricated by police, or that the only response he gave during this interview was ‘no comment.’ The Tribunal prefers the transcript, other documentary evidence obtained under summons, and the sentencing remarks of the court, to Mr Umi’s own implausible contentions and uncertain recollections. Pursuant to paragraph 13.1.1(1)(c) of the Direction, Mr Umi’s multiple convictions for assaulting and resisting police officers performing their duties, and for assaulting an elderly 81-year-old man, are viewed seriously.
Pursuant to paragraph 13.1.1(1)(d) of the Direction, Mr Umi has served multiple custodial sentences since March 2004 and continues to serve a custodial sentence to the present day. Custodial dispositions are at the top end of the court’s sentencing hierarchy and reflect the objective seriousness of his offending.
The incidents of misconduct recorded against Mr Umi during his imprisonment, particularly incidents of violence against other inmates, and his concession that he continued to take Buprenorphine while imprisoned and after ceasing participation in the Methadone Program in 2015, is of significant concern.
Pursuant to paragraph 13.1.1(1)(e) of the Direction, Mr Umi has offended frequently over approximately 13 years. His conduct reflects a propensity for violence and a trend of increasing seriousness. It is noteworthy that Mr Umi’s most recent convictions in August 2013 were for his most serious offences.
Pursuant to paragraph 13.1.1(1)(f) of the Direction, the compounding effect of Mr Umi’s offending since 1999 has imposed considerable costs on the Australian community. That includes the costs of intervention by police and courts when dealing with the consequences of Mr Umi’s actions.
Mr Umi’s persistent criminal offending and incidents of misconduct since being imprisoned reflect a lack of respect for Australia’s law enforcement framework.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states:
(1)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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The guidance at paragraph 6.2(1) of the Direction about determining ‘whether the risk of future harm from a non-citizen is unacceptable’ (emphasis added), acknowledges the community’s acceptance of some risk regarding the conduct of non-citizens depending on its seriousness. That acknowledgement and the expectation that people will be given a chance to redeem themselves and realign their behaviour with expected social norms, is also evident from provisions in our criminal justice system and the rehabilitative opportunities it routinely provides.
The High Court has observed that past actions are often a reliable basis for determining the probability of future behaviour.[56] In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as by Gilmour J in Applicant inWAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the Court summarised the task of determining what constitutes an unacceptable risk of reoffending:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[56] Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 574-576.
The Tribunal notes Mr Umi’s submissions about a difficult early life, encompassing separation from his biological parents early in childhood, limited family support, an injury that he claims ended his aspirations as an elite rugby player, and the breakdown of a long-standing relationship that produced four children.[57]
[57] Exhibit R1, 42-43.
The Tribunal notes that in Mr Umi’s case, there is a prolonged history of criminal convictions to reflect upon. He has reoffended while on conditional liberty and in custody. Although there is a four-year break in his offending between 2008 and 2012, the Tribunal notes Mr Umi committed his most serious offences in November 2012.
The Tribunal notes the court’s reference to Mr Umi’s ‘persistent weakness for alcohol and drugs,’ including the use of heroin around the time of the 2012 armed robbery.[58] The Tribunal also notes the Court of Appeal’s reference to Mr Umi’s offending prior to the armed robbery as being ‘associated with recurrent heavy drinking and a failure to manage anger.’[59]
[58] Ibid, 36 [12]-[13].
[59] Ibid, 43, [34].
At his 2013 trial, the court noted Mr Umi was somewhat remorseful,[60] was taking his rehabilitation ‘very seriously,’[61] and ‘a couple of assay results’ suggested he had been ‘drug free…in prison on remand.’[62] The Court of Appeal noted in August 2013, however, that it was on the basis of Mr Umi’s comparatively less serious drug addiction to that of his co-offender in the armed robbery, that he was assessed as having better prospects of rehabilitation.[63] The Court of Appeal also noted Mr Umi’s submission that he had ‘successfully tested clear on urine screen tests for illicit drugs.’[64]
[60] Ibid, 27 [41].
[61] Ibid, [45]. See also 27 [39}. The Court found some support for the proposition that Mr Umi had ‘attempted to address a number of the underlying problems [he] had – obviously, anger management…’‘
[62] Ibid, [40]-[41].
[63] Ibid, 40, [24], fifth bullet point.
[64] Ibid, 43, [35], sixth bullet point.
Any rehabilitative gains claimed by Mr Umi are diluted by the two-page memorandum in evidence, dated 17 October 2017, which Mr Umi agreed was accurate. The memorandum refers to violent incidents in prison involving Mr Umi and a total of ten positive urine tests, three of which were since January 2017.[65] Mr Umi stated in his oral evidence that he continued to use Buprenorphine after ceasing his participation in the Methadone Program in 2015. When asked about the circumstances of his drug taking and positive urine tests in prison, he said other inmates gave him Buprenorphine on occasions so he could ‘have a night out.’ When it was put to Mr Umi that his evidence about continued drug-taking in prison was at odds with his earlier claim that he had ‘given up drugs and alcohol’ while imprisoned, Mr Umi stated ‘I said to myself by the end of this year you’ll be clean.’
[65] Ibid, 47-48.
The Tribunal put to Mr Umi that a decision in this matter had to be made by early August, and his submission about abstinence from drugs was inconsistent with his later concession that he still uses Buprenorphine ‘once in a blue moon.’ Mr Umi responded: ‘Maybe I have a little bit of rehab due to Bupe, but I’ll get clean by the time I get out.’
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
While acknowledging the difficult aspects Mr Umi’s life, this in no way diminishes the seriousness of his prolonged violent conduct or his risk of recidivism. Experiencing disappointing life events does not justify criminal offences, much less persistently violent offending over a protracted period of time.
The evidence shows Mr Umi has threatened and caused harm to members of the Australian community. If he were to repeat his violent offences, the harm that may be inflicted is potentially very serious, encompassing serious physical or psychological injury, or death.
Mr Umi’s offending cannot be considered impulsive, isolated or short-lived. It is persistently-violent offending, reflective of someone with little respect for Australia’s law enforcement framework. Mr Umi has not previously been dissuaded from reoffending by:
(a)the court’s lenient treatment prior to 2004 when imposing fines, CBO’s and good behaviour bonds;
(b)the constraints of conditional liberty;
(c)rehabilitative opportunities;
(d)the welfare of his family, particularly the children whose interests he invokes; or
(e)sentences of imprisonment.
The Tribunal is unpersuaded by Mr Umi’s submissions that he constitutes a ‘zero chance,’ or even an acceptable risk of reoffending if released, because:
(a)his National Police Certificate discloses ‘some 18 appearances before the courts , and 15 separate convictions for assault, recklessly cause injury, intentionally cause injury, threat to kill and intentionally cause serious injury.’[66] While acknowledging a period of some four years between 2008 and 2012 where Mr Umi was not convicted of any offences, the Court found he had nevertheless ‘been dabbling in drugs and the drug trade in that period.’[67] Moreover, he committed his most serious offences in 2012, including ‘Armed robbery’ and ‘Make threat to kill’ after this four-year period;
(b)the primary contributing factor to Mr Umi’s violent offending is long-standing drug and alcohol abuse. Notwithstanding previous rehabilitative courses and programs while imprisoned, Mr Umi has consistently re-offended on every previous release from prison. Moreover, the incidents of misconduct recorded during his current sentence, including three positive urine tests since January 2017, further exacerbate concerns about his relapsing into further drug use and reoffending if released. Mr Umi’s evidence is that he continued to take Buprenorphine on occasions while imprisoned, but aspires to be drug free by the end of 2019, or earlier if his application before the Tribunal is successful. But the force of Mr Umi’s aspiration is substantially diminished by continued drug-taking in a controlled prison environment, giving rise to concerns about his ability to remain abstinent if at liberty in the community. Moreover, Mr Umi’s characterisation of occasional drug-taking in prison as ‘a night out’ raises doubts about his insight and claimed rehabilitative progress. Given the circumstances, the Tribunal has little confidence in Mr Umi’s aspiration to become ‘clean’ by the end of 2019 or earlier if the Tribunal’s decision is in his favour.
[66] Ibid, 42 [29].
[67] Ibid, 28 [44].
The Tribunal acknowledges the vocational and rehabilitative courses undertaken by Mr Umi, which are clearly a step in the right direction. The responsibility he has been given in prison, particularly in mentoring other Islander inmates is to his credit. The Tribunal accepts he takes that role seriously. The Tribunal also accepts as genuine Mr Umi’s aspiration to reconnect more meaningfully with his children and involve himself in activities, like coaching a children’s rugby team. But the specific circumstances of Mr Umi’s case do not reflect enduring rehabilitative gains or a reliable commitment that he will live a law-abiding life it released. Notwithstanding his heartfelt aspirations and expressions of remorse at the present hearing, the evidence shows his violent offending has persisted after similar submissions to the courts in the past. The incidents of misconduct recorded against him in prison, particularly illicit drug-taking since 2017 and violence involving other inmates, detract from his submissions about remorse, insight and rehabilitative progress. Remorse must be more than words in the context of a court or Tribunal appearance. It must be evident from a person’s actions. The evidence shows Mr Umi’s past submissions about remorse and rehabilitation have proven consistently unreliable. The Tribunal cannot take him on his word alone that he will ‘clean’ himself up prior to release. Having been in prison since 2012, he should have made much more substantial progress with that aspiration by now. The Tribunal is unpersuaded that the long-standing link between Mr Umi’s drug abuse and violent offending has been effectively addressed.
Any rehabilitative progress Mr Umi has made is incomplete at best, relatively short-lived, and has not been tested in the community. The evidence supports a conclusion that Mr Umi’s risk of reoffending is real and the potential harm arising from any repeat of his violent conduct is so serious it constitutes an unacceptable risk to the Australian community. It follows that this primary consideration weighs very strongly, against revoking the cancellation of his visa.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of any minor child in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at paragraph 13.2(4) to 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, and 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 fulfil 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.
The Tribunal notes Mr Umi’s claims about the interests of his children. He states in his 2019 Personal Circumstances Forms (“PCF”) as reasons for revocation:
I am being in Australia all my adult life.
I am marry to Australian lady. She is aboriginal.
I have 5 kids. They all born in Australia.
I don’t want to leave my kids with out they father.
My kids is everything to me.
I love Australia. Only thing I know being Australia.
Only thing I want to support and be there for my kids. When they need me the most. Help them to discover they own identity…
…[68]
(errors in original)
[68] Ibid,65.
The information submitted by Mr Umi about his personal relationships and the children whose interests he invokes can be summarised as follows:
(a)Mr Umi commenced a relationship with Partner A in 1997, married her in 2007, and is still married to her.[69] When asked on his PCF if he is living with Partner A now, Mr Umi ticked the ‘Yes’ box, but ticked the ‘No’ box in response to the question whether he would live with Partner A upon return to the community.[70] The Tribunal is satisfied, however, that Mr Umi’s relationship with Partner A ended in 2011;
(b)Mr Umi states he has four biological children with Partner A, who are currently aged 9, 11, 19 and 21. He claims on the PCF that the children will live with him on his return to the community.[71] While the Tribunal notes that may be Mr Umi’s aspiration, there is no corroborating evidence to that effect;
(c)Mr Umi submits that in 2011 he left Partner A in order to move to Melbourne for work.[72] He submits ‘it will be very hard’ for Partner A and their children if he were repatriated and was unable to support her.[73] There is no corroborating evidence that Partner A or the children he has with Partner A are financially reliant on Mr Umi, who has been imprisoned since late 2012;
(d)Mr Umi refers to a biological child aged 17 from a relationship with Partner B., following a break up with Partner A. Mr Umi submits he never missed any of the child’s birthdays and ‘always helped her out for school.’[74] Mr Umi submits he is in a continuing but ‘open’ relationship with Partner B and is also step father figure to Partner B’s five year old child, who was born in 2014.[75] Mr Umi explained during the hearing that his relationship with the biological child he has with Partner B is via telephone calls and he provides a present to that child and his stepson every Christmas. He has had no meaningful relationship with his stepson, however, having been imprisoned two years before the child was born and well after he ended his relationship with Partner B in late 2002; and
(e)Mr Umi refers to a grandchild, who is the biological child of his eldest son, who is now seven months old and who he has not previously met.
[69] Ibid, 57.
[70] Ibid, 72.
[71] Ibid, 73.
[72] Ibid.
[73] Ibid 57-58; 72.
[74] Ibid, 76.
[75] Ibid, 75.
Mr Umi submits he is very close to all of his children and does everything a good father would do, by always playing a role in their life.[76] He refers to advising them about ‘respect, love and looking after each other.’[77] He contends that he needs to be there for his children when they start their own families and ‘in case anything wrong happen to them.’[78]
[76] Ibid, 74.
[77] Ibid.
[78] Ibid.
The ex-partners Mr Umi refers to were not called as witnesses during the hearing and could not be cross-examined. No documentary evidence was before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes. That said, the Tribunal is satisfied, from the attendance of four of Mr Umi’s five biological children at the hearing, that he has a close and continuing relationship with them and that the love they share is genuine. These children may want to have a continuing relationship with Mr Umi in the future, which would be significantly complicated if he were repatriated to Samoa.
Tribunal findings: Best interests of minor children in Australia
The Tribunal finds there are potentially three biological children and a grandchild under the age of 18, whose interests may be enlivened within the terms of the Direction.
The evidence discloses that through his own criminal conduct, Mr Umi has absented himself from members of his family, including his children, for prolonged periods. That includes disturbing incidents recorded by Police where Mr Umi has been violent against women in his life.[79] It also includes an occasion when Police reported that a number of Mr Umi’s children were present when he committed domestic violence against their mother.[80]
[79] Ibid, 203; 208; 222; 225; 226-228; 229; 232; 233; 240.
[80] Ibid, 226.
Mr Umi’s contact with his children since late 2012 has predominantly been via telephone calls and others have assumed primary parental and supporting responsibilities.
Mr Umi’s role in the lives of his children can be considered sporadic and unreliable since his imprisonment in 2012. The Tribunal is unable to reliably discern, in the absence of evidence from Mr Umi’s former partners, or his children, or others with personal knowledge about the children, how the individual interests of the children may differ. That said, the Tribunal concludes that:
(a)the interests of the grandchild Mr Umi refers to can be given very little weight, given he has never met the child;
(b)the interests of the child Mr Umi has with Partner B, who is approaching adulthood, can be given some weight; and
(c)the interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.
The Tribunal finds that on balance this primary consideration weighs in favour of revoking the cancellation of Mr Umi’s visa.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Community expectations are ultimately a matter of judgement for each decision-maker and turn on the specific circumstances of each case.[81] Deputy President Frost of this Tribunal has previously explained that it ‘is within the broad middle ground of our society that the “expectations of the Australian community” are properly sought.’[82]
[81] See Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
[82] Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [80].
The Tribunal’s experience is that this primary consideration is not inevitably adverse to an applicant. Consistent with Paragraph 8(3) of the Direction, ‘Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ (Emphasis added). The logical extension of the Direction’s guidance is that some risks may be considered ‘acceptable’ by the community. Community expectations also encompass the general presumption that people will be given a chance to redeem themselves and realign their behaviour with expected social norms.
Factors to be weighed in assessing community expectations are non-exhaustive and no single factor is determinative. The sort of factors to be considered include:
(a)how long a non-citizen has spent in Australia and what contribution they have made to the community through work and other avenues;
(b)the nature and seriousness of any convictions or other objectionable conduct;
(c)assessment of an applicant’s insight and remorse;
(d)compliance with corrective penalties and whether an applicant has re-offended or been warned by immigration authorities about the consequences for their visa status;
(e)any expert evidence about rehabilitative prospects and risk of recidivism; and
(f)any practical or emotional support available to an applicant that may constitute protective factors relevant to preventing recidivism.
The Tribunal has, on occasion, concluded that the Australian community, informed of the specific circumstances of a case, may consider an applicant should be permitted to hold a visa, or that this primary consideration has neutral effect.[83] On other occasions the Tribunal has concluded the community would expect the non-citizen should not hold a visa. This broad approach is reflected in the recent decision of Griffith J in DKXY v Minister for Home Affairs [2019] FCA 495 at [34].
[83] ZNBG and Minister for Home Affairs [2019] AATA 1872 (“ZNBG) at [125].
Tribunal finding: Expectations of the Australian community
In Mr Umi’s case, he has made some contribution to the Australian community through work and sporting participation during his 24 years in Australia. His unchallenged oral evidence was that he played rugby at state representative level and started a rugby club in Broadmeadows. It is clear from the evidence that he has also made some contribution by mentoring other Islander inmates while imprisoned. The Tribunal also notes the single, two year old letter in support of his application,[84] which, for the reasons previously articulated, the Tribunal places little weight on.
[84] Exhibit R1, 106.
The community would be concerned that Mr Umi was convicted of criminal offences within four years of arrival, and has continued to commit multiple violent offences for approximately 13 years. The community would be particularly concerned that his prolonged and violent conduct has harmed other citizens and reflects a wilful disregard for Australian law enforcement framework.
The Tribunal finds that Mr Umi has exhausted the tolerance of the Australian community. His serious and prolonged criminal conduct is at odds with the reasonable expectations of the Australia community, who expect visa holders to respect Australia’s laws and not cause or threaten harm to others. As the Direction makes clear, the Australian community expects non-citizens who commit serious crimes in Australia should generally expect to forfeit the privilege of staying in Australia.
Informed of the specific circumstances of this case, the broad middle ground of Australian society would expect Mr Umi should not hold a visa. This primary consideration weighs very strongly against revoking his visa cancellation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non- refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Tribunal notes publicly available advice from the Department of Foreign Affairs and Trade, current as at 19 July 2019, which recommends that in relation to Samoa, Australians should ‘exercise normal safety precautions.’[85]
[85] Australian Government, Department of Foreign Affairs and Trade, Samoa (20 December 2018) Smartraveller <
In his 2019 Personal Circumstances Form, responding to a question about whether he has any concerns or fears about repatriation to Samoa, Mr Umi states he does not face any criminal charges in Samoa, and expresses his fears in the following terms:
Yes my health.
No one there I know to live with.
My mother she in Am Samoa.
It is nothing there for me.
In relation to his health, Mr Umi states the following in his 2019 PCF:
You have to ring up Fulham CC Medical for me.
Thay said: “Your department have to ring FCC to relese my medication file.[sic]
Mr Umi did not list any medications in response to this question in his 2019 PCF. In response to the question: ‘If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress,’ Mr Umi wrote:
‘Yes.
Fulham C.C have all my documents of my health.’
Tribunal finding: International non-refoulement obligations
On the material before the Tribunal, Mr Umi does not raise any claims that might enliven Australia’s non-refoulement obligations as a relevant consideration in this matter. His other concerns are dealt with under ‘Extent of impediments if removed’ later in these reasons.
It follows that this consideration weighs neither for nor against revocation.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… 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; and
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 non-revocation 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).
Mr Umi was 19 years old on arrival in Australia, having spent his formative years in Samoa and undertaking school there. He has lived in Australia for approximately 24 years. Some weight is placed on his claimed positive contribution through work and involvement in sport, although there is no independent corroboration of the specific extent of that contribution. The Tribunal notes on his own evidence, however, Mr Umi has not worked since 2009 and there is no evidence of a realistic prospect of work on release.
The Tribunal notes Mr Umi commenced offending approximately four years after arrival in Australia and he continued to reoffend over approximately 13 years.
Tribunal finding: Strength, nature and duration of ties
Reflecting on the principles at paragraph 6.3 of the Direction, less weight is placed on Mr Umi’s claims under this consideration.
Although Mr Umi’s claims about work, sporting and volunteering efforts are uncorroborated by supporting evidence, the Tribunal places some weight on his claimed contributions to the Australian community.
The Tribunal is satisfied Mr Umi’s strongest links are in Australia, including with his children, who are Australian citizens.
This consideration weighs in favour of revocation.
Tribunal consideration: Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by a decision not to revoke Mr Umi’s visa cancellation. This consideration weighs neither for nor against revocation.
Tribunal consideration: Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 revocation has been afforded procedural fairness.
In the absence of any direct evidence from the victims of Mr Umi’s offending, the Tribunal finds this consideration weighs neither for nor against revocation.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
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 Umi left Samoa as an adult and speaks the Samoan language.
Mr Umi refers in his 2019 PCF to unspecified health issues as impediments to his repatriation, but there is no supporting evidence for those claims. He does not list any current conditions or medications taken in his 2019 PCF. Mr Umi clarified during his oral evidence that he has no current health issues of concern that might prevent him from working, and the only medication he currently takes is an unnamed ‘daily pill for heart pressure.’
Tribunal findings: Extent of impediments if removed
Mr Umi’s unchallenged evidence is that he has no family or friendship networks to draw on in Samoa, and that his mother lives in American Samoa.
There is no compelling language or cultural impediment evident in relation to Mr Umi’s possible repatriation. He left Samoa as an adult and the Tribunal is satisfied he retains a familiarity with Samoan language and culture. While his knowledge of Samoan language and culture may have degraded over the years, the Tribunal notes Mr Umi’s agreement that both Samoan and English are the predominant languages used in Samoa.
Mr Umi is currently 43 years of age with a previous work history in Australia and, on his own evidence, a renewed commitment to change his ways and live a law-abiding life. He has completed a number of vocational courses and programs while imprisoned, which may serve to enhance his attractiveness in the Samoan or other regional job markets. Mr Umi is not precluded from remunerative work by any current health conditions.
There is no evidence that Mr Umi would not have access to the same health or housing or employment support services available to other Samoan citizens.
The Tribunal acknowledges that if returned to Samoa, Mr Umi would lose easy physical access to the family and friends he has in Australia, and to income support and other payments. He would also be subject to the stresses of re-establishing himself in a country he last lived in at the age of 19. That includes trying to re-connect with relatives, securing stable accommodation, and maintaining basic living standards. His aspiration to play a more prominent parental role in the life of his children would also be significantly complicated, potentially causing Mr Umi tangible distress. Under such circumstances, his psychological health may be impacted.
The Tribunal accepts that there are impediments confronting Mr Umi in re-establishing himself in Samoa and this consideration weighs in favour of revocation.
Any Other Considerations
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of Mr Umi’s application.
CONCLUSION
Mr Umi does not pass the character test and his visa was liable for mandatory cancellation under s 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case.
Mr Umi’s criminal offending has caused harm to members of the Australian community. Despite previous lenient treatment by the courts and frequent rehabilitative opportunities, Mr Umi continued to re-offend. He received multiple custodial sentences between 2004 and 2013, and was sentenced as a serious violent offender at his most recent court appearance. Mr Umi’s conduct reflects a disturbing propensity for violence and a lack of respect for Australia’s law enforcement framework.
If Mr Umi were to repeat his violent offences, the harm that may be inflicted is potentially very serious, encompassing serious injury or death. The Tribunal is unpersuaded by his claims about rehabilitation, noting that despite attendance on a number of courses and programs over the years, he has consistently re-offended. Moreover, the incidents of misconduct recorded against him during his current sentence do not reflect someone with persuasive insight, remorse and an intention to live a law-abiding life. Mr Umi’s risk of reoffending is real and the potential harm caused by his recidivism is so serious that it constitutes an unacceptable risk to the Australian community.
Mr Umi clearly loves his children and aspires to reconnect more meaningfully with them in the future. Notwithstanding a dearth of evidence from his minor children or their guardians, the Tribunal is satisfied Mr Umi’s children reciprocate his love and want him to remain in Australia. The Tribunal finds this primary consideration weighs in favour of revoking the cancellation of Mr Umi’s visa, but less so given Mr Umi’s role in the lives of his children can be considered sporadic and unreliable at best since his imprisonment in 2012. The interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.
Mr Umi’s serious and prolonged criminal conduct is at odds with the reasonable expectations of the Australia community. Informed of the specific circumstances of his case, the broad middle ground of Australian society would expect that Mr Umi should not hold a visa.
The Tribunal is satisfied that the strongest family and social ties Mr Umi has are in Australia and this consideration weighs in favour of revocation.
The Tribunal accepts there are impediments confronting Mr Umi in re-establishing himself in a country he left as a 19-year-old. That includes locating stable accommodation, employment and basic living expenses. His unchallenged evidence is that he has no family or friendship networks to draw on in Samoa, because his mother lives in American Samoa. On balance, the Tribunal finds this consideration weighs in favour of revocation.
Having weighed all of the considerations individually and cumulatively, the weight of evidence supports a finding there is not another reason why the decision to cancel Mr Umi’s visa should be revoked. That is because ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of minor children in Australia,’ and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which favour revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 166 (one hundred and sixty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
..............[sgd]..........................................................
Associate
Dated: 31 July 2019
Date(s) of hearing: 22 - 23 July 2019 Applicant: In person Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: Australian Government Solicitor Annexure
Court
Court Date
Offence
Court Result
Melbourne Supreme Court
13 August 2013
Armed robbery
Make threat to kill
Prohibited person possess firearm
Neg deal prop become instrument of crime
Unlawful Assault
Unlicensed driving
Use threatening words in public place
6 years imprisonment
3 years imprisonment. 2 years, 6 months of sentence concurrent
3 years imprisonment. 2 years of sentence concurrent
18 months imprisonment concurrent
6 months imprisonment concurrent1 month imprisonment concurrent
14 days imprisonment concurrent
Total 7 years, 6 months
Bairnsdale County Court
29 May 2013
Possess ammunition without licence
Use drug of dependenceConvicted and discharged
Melbourne Magistrates Court
22 April 2013
Resist police
Possess drug of dependence – prescript drug
14 days imprisonment concurrent
With conviction, fined $500.00 with $107.80 statutory costs
Melbourne County Court
5 February 2010
Intentionally cause injury
12 months imprisonment. Sentence suspended for 12 months under section 27 of Sentencing Act 1991
Bairnsdale Magistrates Court
11 February 2008
Intentionally cause injury
5 months imprisonment concurrent
Sentence is wholly suspended under section 27 of the Sentencing Act 1991
Operational period is 12 monthsBairnsdale Magistrates Court
28 June 2007
Intentionally cause injury
Resist police (2 charges
Unlawful assault
Criminal damage (intent damage/destroy)Act prejud sec/good order/management gaol
Drunk in public place (2 charges)Act prejud sec/ good order/ management gaol
Aggregate 7 months imprisonment concurrent
With conviction, fined an aggregate of $1500.00
With conviction, fined an aggregate of $1500.00 pay compensation $2147.00Moe Magistrates Court
13 December 2005
Recklessly cause injury
Unlawful assaultAggregate 3 months imprisonment concurrent
Melbourne County Court
25 October 2005
Breach re 24/06/2004 intentionally cause serious injury
Intentionally cause serious injury
Assault police on duty Criminal damage (intent damage/destroy)Breach of suspended sentence
Sentence reinstated
Aggregate 165 days
Melbourne County Court
4 October 2005
Breach re 10/10/2002 recklessly cause injury
Breach of community based order. Order cancelled. Convicted and released on an adjournment to 3.10.06
Moe Magistrates Court
14 December 2004
Unlawful assault
With conviction, fined $800.00
Melbourne County Court
24 June 2004
Intentionally cause serious injury
Intentionally cause injury
Assault police on duty criminal damage (intent damage/destroy)
Common law assault
9 months imprisonment
6 months imprisonment. 5 months of sentence concurrent
3 months imprisonment on each count. 2 months of each count concurrent. Total 12 months. 165 days of sentence suspended for 12 months under section 27 of the Sentencing ActConvicted community based order for 12 months
Broadmeadows Magistrates Court
12 March 2004
Recklessly cause injury
Resist police (3 charges)
Unlawful assault (3 charges)
Make threat to kill
Act in a disruptive manner – police gaolDrunk in a public place (2 charges)
State false name when requested
Use threatening words in public placeAggregate 4 months imprisonment concurrent
With conviction, fined an aggregate of $750.00Melbourne County Court
10 October 2002
Recklessly cause injury
Convicted community based order for 12 months, to perform 150 hours unpaid community work
Broadmeadows Magistrates Court
2 May 2001
Assault police/person assisting police (2 charges)
With conviction, fined an aggregate of $1000.00
Melbourne County Court
13 August 1999
Criminal damage by fire (arson)
Possess cannabis
Convicted community based order for 12 months. To perform 100 hours unpaid community work over 6 months
Convicted and fined $150
4
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