Vaivaka and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 489
•30 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 489
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/375
GENERAL ADMINISTRATIVE DIVISION ) Re Sione Vaivaka Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date30 May 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – VISAEX ─ on-shore visa cancellation on the ground of the applicant’s substantial criminal record – applicant fails the character test – held that the applicant has a substantial criminal record – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant if he were returned to Tonga – examination of his criminal conduct, previous warnings regarding the possibility of visa cancellation and family situation – found there is uncertainty about the applicant’s use of illegal drugs, the applicant has a very serious record of criminal wrongdoings, there is some risk of recidivism, not exercising the tribunal’s discretion will act as a deterrent, the community would expect that the applicant has forfeited the right to a visa, the applicant and his family will suffer emotional hardship however the applicant has acquired skills which could assist him in Tonga – decision of the respondent is affirmed.
Migration Act 1958 ss 499(1), 501, 501(2)(a)(b), 501G, 501(6)(c)(i), 501(7)
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
REASONS FOR DECISION
30 May 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Sione Vaivaka (also known as Tonga Vaivaka), is aged 32 and a citizen of Tonga. Mr Vaivaka came to Australia in 1981 at the age of nine. On 1 September 1994, Mr Vaivaka was granted a transitional (permanent) visa by operation of law under the Migration Reform Act. Between 1991 and 2004, he committed a series of criminal offences including robbery, assault, stealing, being an accessory to robbery, robbery being armed, being in possession of stolen property, supplying a prohibited drug on a on-going basis and possessing a prohibited drug. In addition, he has driving-related offences recorded against him including drive while unlicensed, drive while disqualified and driving an unregistered vehicle.
2. On 18 March 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Vaivaka’s transitional (permanent) visa on the ground that he failed the character test because of his substantial criminal record in Australia and past and present criminal conduct. This is the decision to be reviewed by the tribunal.
Background
3. Mr Vaivaka was born in Tonga on the 28 November 1972 and is aged 32. He is a citizen of Tonga. He first came to Australia, as the holder of a subclass P10211 (child) visa, on 19 September 1981 with his mother, two brothers and sister, his father having arrived earlier. At the time he was aged nine. On 1 September 1994, he was granted a transitional (permanent) visa by operation of law under the Migration Reform Act. His parents, brothers and sister reside in Australia.
4. Between 1991 and 2004, Mr Vaivaka was convicted of a series of criminal and driving-related offences (G6 p124)). He is disqualified from driving until 25 February 2007 (G p138). His criminal record (he has used 14 aliases), which is approximately 15 pages long, includes the following:
Charge Date
Court/Date
Offence
Sentence
16/6/1991
Downing Centre Local Court, 6/11/1991
1.Robbery with striking
2.Robbery in company
1. & 2. Committed for trial.
16/6/1991
Sydney District Court, 27/8/1992
1. Common Assault
2.Robbery
3.Robbery in company
1.Indicted for offence not proceeded with, plea of guilty to alternative offence robbery in company accepted by Crown in full discharge of indictment.
2. Indicted for offence not proceeded with, plea of guilty to alternative offence robbery in company accepted by Crown in full discharge of indictment.
3. Alternative periodic detention 18 months commencing 4/9/1992.
4/6/1992
Downing Centre Local Court, 14/7/1992
1.Stealing
1.Fined $800, compensation $500, court costs $45.
28/1/1993
Burwood Local Court, 18/2/1993
1.Robbery being armed and in company.
1.Committed or trial
28/1/1993
Parramatta District Court, 12/10/1993
1. Conceal serious offence.
2.Accessory after the fact to rob in company.
1.Alternative recognisance s558 $200 2 years accept supervision NSW Probation Service.
2.Indicted for offence not proceeded with plea of guilty to alternative offence conceal serious offence accepted by Crown in full discharge of indictment.
17/12/1993
Sydney District Court, 17/12/1993
1.Breach periodic detention.
1.Fixed term 6 months (warrant to issue).
31/1/1994
Liverpool District Court, 27/5/1994
1.Robbery with striking.
1.No appearance, warrant to issue.
9/2/1996
Sydney District Court, 22/3/1996
1.Robbery with striking (bench warrant).
1.Minimum term 3 years 3 months from 8/2/1996 add term 2 years, release subject to supervision (An appeal against severity of sentence was lodged and abandoned).
7/4/2001
Burwood Local Court, 24/4/2001
1.Common assault
1.Fined $200, court costs $56.
9/2/2002
Burwood Local Court, 26/2/2002
1.Licence expired 2 years or more before 2nd offence.
1.Fined $1,000, costs $58, disqualified for 3 years commencing 25/2/2002.
3/10/2002
Sydney District Court, 14/3/2003
1.Supply prohibited drug on an on-going basis.
Imprisonment 1 year commencing 2/10/2002 concluding 1/10/2003 non-parole period 165 days concluding 15/3/2003.
4/6/2003
Burwood Local Court, 4/11/2003
1.Fail to appear in accordance with bail undertaking.
2.Maliciously destroy or damage property.
3.Contravene apprehended domestic violence order.
4.Common assault.
1. Adjourned generally.
2.Fined $350, court costs $61.
3.Fined $500, court costs $61,
4.Community service order 200 hours.
4/6/2003
Fairfield Local Court, 23/11/2004
1.Common assault.
1.(Call up) imprisonment 4 months commencing 19/11/2004.
13/10/2004
Parramatta Local Court, 10/11/2004
1.Use unregistered vehicle on road area.
2.Use uninsured motor vehicle.
3.Drive while disqualified from holding a licence.
1.Fined $500.
2.Fined $500.
3.Convicted s25(2) warrant to issue.
13/10/2004
Fairfield Local Court, 23/11/2004
1.Drive while disqualified from holding a licence.
1.Imprisonment 4 months commencing 19/11/2004.Disqualification 12 months commencing 25/2/2005. Disqualification habitual offender quashed.
20/10/2004
Fairfield Local Court, 23/11/2004
1.Drive while disqualified from holding a licence.
1.Imprisonment 4 months commencing 19/11/2004.Disqualification 2 years commencing 25/2/2007. Disqualification habitual offender quashed.
6/11/2004
Parramatta Local Court, 8/12/2004
1.Shoplifting value <$2,000.
1.Convicted s25(2) warrant to issue.
18/11/2004
Waverley Local Court, 19/11/2004
1.2.3. Warrant executed for charges.
Warrant executed.
5. While Mr Vaivaka has been in prison, he has had the following prison offences recorded against him (G p165):
Hearing date Offence and Sentence
22/5/1998Drugs in urine (cocaine and ephedrine) – 1 month 14 days off contact visits
18/1/1998 Fail to comply with supervision – 28 days good behaviour
4/10/1996 Unauthorised property – 14 days supervision, off other
amenities.
On 2 May 1998, the applicant’s prison classification was declassified from “C3” to “C2” due to his drugs in urine offence and he was moved from Parklea Correctional Centre to Cessnock Correctional Centre. On 4 December 1998, the applicant was moved to Long Bay Correctional Centre as a result of allegedly being involved in a serious assault on another inmate.
6. On 6 May 1999, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) informed Mr Vaivaka that the Minister or his delegate had considered cancelling his visa as a result of his conviction for robbery with striking, but it had been decided to issue him a warning that any further conviction would lead to his visa cancellation being reconsidered (G p123).
7. On 14 November 2003, Mr Vaivaka was convicted in the Burwood Local Court on charges of maliciously destroying or damaging property, contravening apprehended domestic violence orders, and common assault. On 25 November 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) wrote to the applicant, informing him that the Minister or his delegate was considering cancelling his transitional (permanent) visa because of his substantial criminal history and past and present criminal conduct, including his convictions of 14 November 2003, and the fact that he had previously received a warning and inviting him to comment (G9 p166). On the 27 November 2003, he was further advised that the Minister or his delegate would be taking into account the sentencing comments of the District Court judge made on 14 March 2003 (G p178). Mr Vaivaka acknowledged receipt of his second warning on 19 December 2003 (G12 p174).
8. On 19 December 2003, the applicant wrote to DIMIA, stating that he felt that he had been rehabilitated and had undertaken numerous courses including for stress management and drug and alcohol abuse and that he was working hard to turn his life around. He stated that he had been in Australia since the age of seven (in fact he was aged nine), his family all lived in Australia, he had broken off with his previous girlfriend because of her drug problems which had led him into trouble, and that he was now in a new relationship and that his girlfriend was expecting his child (G pp175-177).
9. On 27 January 2005, a delegate of the department advised Mr Vaivaka that the delegate or the Minister would also be taking into account his record of convictions, sentences and appeals as at 14 January 2005 and his updated criminal history as at 18 January 2005 and allowing him until 10 February 2005 to provide new information and submissions to be considered in deciding whether to cancel his visa (G13 p178).
10. By letter of 31 January 2005, Mr Vaivaka wrote to DIMIA apologising for his “stupid” behaviour and asking that he be given another chance to make a better person of himself (Gp182). He wrote a further letter dated 7 February 2005, in which he stated that his new relationship had ended, having found out that she was not pregnant as she had told him and that she was on a methadone program. He also stated this would be his last time in jail, his family all live in Australia and that he knows no-one in Tonga, if he was sent back to Tonga he would never see his parents again and asking for a last chance to prove himself (G p188).
11. A submission was also made to the department by Osai Faiva, Coordinator, Community Settlement Services, MayMurray Neighbourhood Community Centre Inc, stating that he had personally known the applicant and his family for many years and would be willing to take measures to involve the applicant in the work of the community centre and to become his mentor (G15 p185). A submission was also made by his father, Taumoefolau Vaivaka, dated 10 February 2005, in which he submitted that the family had been in Australia for a long time and that there was no one in Tonga who could assist his son if he were deported, that his wife was suffering poor health worsened by the fear of what was going to happen to her son, that a social-welfare officer had offered to be his son’s mentor and pleading that his son be given one more chance (G p186).
12. On 18 March 2005, a delegate of the respondent decided to cancel Mr Vaivaka’s transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1). On 24 March 2005, Mr Vaivaka lodged an application for a review of this decision by the tribunal.
13. Mr Vaivaka was released from Parramatta Correctional Centre on 18 March 2005 and immediately detained in the Villawood Detention Centre, New South Wales.
14. At the hearing, the applicant appeared in person and the respondent was represented by Gretchen Bennett, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Mr Vaivaka gave oral evidence in person.
Relevant Law and Policy
15. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
16. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
17. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
18. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
19. In the present case, Mr Vaivaka does not pass the character test because of his “substantial criminal record”, having received on 22 March 1996, a term of imprisonment of three years and three months with an additional term of two years for robbery with striking, and on 14 March 2003, a term of imprisonment of one year with a non-parole period of 165 days for supply prohibited drug (cannabis) on an ongoing basis. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Vaivaka’s visa.
Evidence
20. The applicant gave oral evidence. He said that his last few convictions were the result of his breaking up with his girlfriend of 14 years. He simply did not care what happened to him during that period. All his assault convictions resulted from arguments with her while the relationship was breaking down, but now he was on friendly terms with her and she was in a new relationship. Currently he himself was not in any relationship with a woman and was living with his parents. His father is still the minister at the Ashfield Tongan Uniting Church.
21. His assertion that all his assault charges arose from “domestic” disputes is not correct, however, as his conviction for robbery in company involved actual violence by him against the victim. As regards the 2003 conviction for supplying a prohibited drug (heroin) on an ongoing basis, it was not disputed that what he was actually selling was small packets of icing sugar, which he represented as being heroin and for which he charged $100 each. His explanation for that offence was that all three transactions took place on the same day and that he knew the purchaser was an undercover police officer. He sold him the icing sugar, in the guise of heroin, purely as a joke and was unaware that he could be charged with supplying a prohibited drug in those circumstances. He had pleaded guilty to the charge, but had not told the judge that he had meant the whole thing as a joke, as the police had informed him that his intention was legally irrelevant. Even when pressed, however, he offered no coherent explanation of what he was doing at Kings Cross in circumstances in which an undercover police officer would approach him for the purpose of buying drugs.
22. Judge Shadbolt’s sentencing remarks throw a different light on the episode. His Honour quoted this passage from the pre-sentence report: “The offender again cited that he was compelled to resort to heroin to deal with his stressful relationship. His commission of the offence was his effort to finance the purchase of heroin. Mr Vaivaka maintained that he did not think it a crime to sell icing sugar. …[H]e neither expressed remorse for his actions or for the deceit involved” (G p192).
23. In his interview with the probation officer there is thus no mention of playing a joke on an undercover agent and it becomes perfectly obvious what he was doing in the Kings Cross drug-dealing milieu. Plainly, in his evidence on this point at the hearing he was intending to mislead the tribunal.
24. He attributed his other 2004 convictions to the breakdown of his relationship with his girlfriend, but said that the shoplifting conviction, which arose from stealing a jacket, was “stupid”.
25. He said that he is now old enough to step out of that life and that if released he intended to return to work with the church at Ashfield. He had also received offers of labourer work. He wanted to stop hurting his parents, lead a normal life and return to the church. It was pointed out to him that he was involved with the church in 1999 but still re-offended, but again he blamed the relationship breakdown for his misdemeanours.
26. He claims to know nothing about Tonga and predicted if returned that he would simply be on the street. He does speak conversational Tongan, however, and has a number of useful skills. He is a talented musician who reads music and normally plays the trumpet, but as the parish director of music points out, he can also play any other instrument in the parish brass band, which has been invited to perform at large functions and competitions both within and outside the church.
27. While in prison in 1996 and 1997 he obtained Bathurst TAFE certificates in horticulture, bricklaying, occupational health and safety and first aid. His work experience includes building and construction, concreting, electrical, painting and general labouring. In the engineering shop in Parklea he performed welding, sheet metal work, brazing and metal fabrication. Before he was in prison he also worked as a forklift operator at Paddy’s Market and at Pratties of Marrickville. He is a presentable, indeed personable-looking, young man. It is hard to believe that he could not find any kind of useful work in Tonga, whether in the tourist industry, construction or other fields.
28. He claimed that he did not know whether his church had any contacts in Tonga, but that is contradicted by his assertion that his family wish him to attend a church conference that commences on 10 June 2005 in Tonga, assuming he is released from custody.
29. The desirability of his attending the June church conference is a theme common to a number of his character references (Exhibit A3). His parents wrote in their letter of 10 May 2005 that they hope -
“to take him with us to a church conference in Tonga. The hope here is to take him back to his roots, to see and experience the family values and the values of the church. We hope and pray that this experience would open his eyes to see the reality of his roots, like that of an electric shock, to shake him out of the world he thinks he’s in. The conference in Tonga lasts two weeks and depending on our financial circumstances, I may be able to stay on with him a bit longer in a cheap motel in Tonga so he could absorb as much ‘truths’ as possible about where he came from and hopefully make him more focus [sic] on the right direction for his journey towards the future. Given this opportunity, I have great faith that this will be a turning point for him and for other family members. I have great faith that this experience will make him realize that no man is an island and that what he does affects other people, particularly those who love him very much, like his family. I hope that this proposal and undertaking on our part will break the vicious circle he is in”.
30. Those sentiments are echoed by Mr Osai Faiva, the coordinator, Community Settlement Services at MayMurray Neighbourhood Centre at Marrickville. He supported the proposal to take Mr Vaivaka to the June Conference to enable him −
“to gain as much benefit as possible from the communal and extended family lifestyle and values that should help frame his new start. The other positive thing about this strategy is that Sione will be temporarily but completely removed from his environment in Sydney: his friends, the things he used to do and the places he used to go to. Instead, he will be confronted with his roots and the values of his traditional culture”.
31. The Ashfield Tongan Parish Director of Music notes that the band has been invited to perform at the June Conference:
“Our choir, which includes the band, has been invited to sing at various programs of a church conference in Tonga next month. We would dearly love to have Sione travel with us to this conference. As a team member of the band, we were looking forward to his contributions and his talents. The opportunity of going to Tonga may also prove to be a turning point for him in learning and experiencing, first hand, where his roots are and the values he has lost in the process of migration”.
32. Mr Vaivaka states that, thanks to the drug and alcohol management courses that he undertook while in prison, he has vanquished his tendency to drink to intoxication and now consumes alcoholic beverages only on rare occasions, such as weddings. He claims to be free of drugs, but admits having taken heroin as recently as ten months ago. There is no evidence to contradict his assertion about his temperance in matters of alcoholic refreshments, but the picture is less clear in relation to drugs. In 1999 he denied ever having used drugs, despite the fact that while in custody he had been detected with cocaine and ephedrine in his urine. As was noted above, he prevaricated at the hearing about the circumstances leading to his arrest for supplying drugs in Kings Cross, and he has used heroin relatively recently.
33. Mr Vaivaka tendered a large number of character references on his behalf including from his brother, George Vaivaka, his parents Taumoefolau Vaivaka and Alisa Vaivaka, Osai Faiva, the Coordinator, Community Settlement Services at MayMurray Neighbour Centre Inc, and from family friends Morris Karam of Balmain Fitness, David Pangai, Andrea O’Drazilova and Mafi-to-ki-Felenite, as well as a petition from 35 members of the Tongan congregation at the Uniting Church, Ashfield (Exhibit A3). These references attested to the applicant’s good character and dedication to the church. It may be noted that none of the referees indicate that they know of the applicant’s serious criminal conduct or provide any insight as to why he re-offended after having been given a stern warning and knowing that a further crime would increase the likelihood of removal.
Application of the Law and Findings of Fact
34. As stated above, there is no dispute, and I find accordingly, that Mr Vaivaka does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, the applicant has been convicted of a number of offences for which he was sentenced to a term of imprisonment greater than 12 months.
35. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Vaivaka’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
36. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
37. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (a) the commercial dealing or selling of illicit drugs, (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons, (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community, and (o) convictions for being an accessory to any of the above.
38. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
39. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant has a lengthy criminal history since the age of 19 including crimes involving violence, prohibited drugs and serious motor vehicle-related crimes. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …
40. In addition, while motor vehicle-related crimes are not specifically listed in Direction No 21, they are crimes which can cause great public harm and are of concern to the welfare and safety of the Australian community as well as being costly and disruptive to the community. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; …
It can be conceded, as Judge Shadbolt observed, that the conviction for supplying drugs was “one towards the very [low] end of the spectrum for such offences”. Nevertheless, the conviction for robbery with striking, even on its own, but especially when cumulated with all his other transgressions, adds up to a very serious record of criminal wrongdoing.
41. Next, the tribunal must consider the risk of recidivism. The applicant is a repeat offender who regularly appeared before the courts between 1991 and 2004. Paragraph 2.10(b) of the direction states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. On 22 March 1996, in the District Court criminal jurisdiction, Judge Kinchington commented in sentencing the applicant (G p49):
As I have previously indicated, you have been given the benefit of lenient treatment previously when you appeared before this Court and at the time you committed this offence you were on a recognizance for having committed the criminal offence … of concealing a serious criminal offence. Having said that, I also recognise that the subjective material that has been placed before me is very strong in your case. You are still a relatively young man who has every prospect of being able to make a contribution to our society. You tell me through your counsel, and your actions while in custody would appear to demonstrate, that you are prepared to live down your past criminal behaviour and do everything you can to become a useful member of our society. … It would seem that alcohol has played a very major part in your criminal behaviour up-to-date. If you can come to grips with that problem then you are well on the way to becoming a useful member of our society.
Yet despite his expressed resolve to lead a law-abiding life, he proceeded to commit many more offences.
42. Further, in sentencing the applicant on 14 March 2003, Judge Shadbolt of the District Court commented with regard to the risk of recidivism (G p194):
… although you think you yourself at the moment are free of any threat from heroin, that very well may not be the case when you get out and have a lot more worries.
… So there will be no excuse if you return to heroin and return to this Court because, as night follows day, if you go back to heroin you will come back here.
43. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. On that criterion alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future. In her statement of facts and contentions (Exhibit R1), the respondent states that the applicant has a high risk of recidivism and that he has not shown any form of rehabilitation: “Instead the applicant has a history of committing offences, the latest sentence being handed down on 8 December 2004. Many offences have been committed after he received a formal warning on 6 May 1999.”
44. He assured the tribunal that he is a reformed character who wants only to lead a decent and useful life, but he has given those assurances before and broken them. He claims to be free of alcohol and drugs, but there remains some question about the latter, as he completed numerous drug and alcohol courses in 1996–1998 but repeatedly took heroin after that, including on one occasion ten months ago. He attributes his more recent period of criminality to the stresses caused by the progressive deterioration of his relationship with his girlfriend, but that is hardly reassuring either. Almost everyone faces stresses, anxieties and disappointments in life, but the great majority of people do not attempt to relieve their frustrations by breaking the law. There is some reason to fear that the next time Mr Vaivaka experiences stress or frustration, he may once again transgress.
45. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating, or currently engaged in, criminal activity.
Expectations of the Australian community
46. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
47. The applicant has engaged in continuous criminal conduct since 1991 up until 2004. He continued to break the law even after being given his first deportation warning in emphatic terms, on 6 May 1999 and his second deportation warning on 25 November 2003. In my view the Australian community would expect that a person who comes to Australia as a child and then as a 19 year old commences a 13 year period of committing serious criminal offences including robbery and assault, is sentenced to more than eight terms of imprisonment and is disqualified from driving until 25 February 2007 for motor vehicle offences which have the potential to cause great harm to others, and disregards severe warnings about the risk of visa cancellation should he re-offend, has forfeited any right to remain in Australia.
The Best Interests of the Child
48. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2).
Other Considerations
49. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
50. The applicant’s parents and siblings all reside in Australia. On the applicant’s evidence, he has no relatives in Tonga. It is likely that his family in Australia, and especially his aged parents, would experience emotional hardship if he were removed back to Tonga. On the other hand, they could visit him there, and indeed are planning to spend some weeks there in June for the purposes of the church conference to which they hope to take the applicant if his appeal is successful. Apart from his apparent temperance in the consumption of alcohol, there is little evidence of rehabilitation. The trade courses, anger management and drug and alcohol courses that he completed at Bathurst TAFE and other institutions were all undertaken in 1996 to 1998, but he continued to offend after that. The evidence of rehabilitation mainly consists of his expressions of intention of a kind that he has expressed before, but not followed. There are no business ties to Australia that need to be considered.
51. The applicant would experience some hardship if required to return to Tonga, where he has not lived since he was nine. As against that, he speaks Tongan and has acquired a variety of useful skills that should assist him in obtaining employment. The Ashfield Tongan church has contacts in that country that should be helpful to him.
52. In addition, there is the prospect of the church conference commencing in Tonga on 10 June, which his parents and others associated with the Ashfield Tongan parish strongly believe the applicant should attend. The proposal is based on the assumption that his application is successful. The advantages of his attending the conference are manifestly greater, however, if his application is unsuccessful. I do not know whether it would be practicable for the department to arrange for the applicant to be back in Tonga by 10 June, but if it is possible, there is good reason to believe that participating in the conference would materially help his re-absorption in Tongan society.
53. Weighing up the primary and other considerations, I find that the primary considerations of community protection and community expectations outweigh the other considerations in this case. The decision under review should be affirmed.
I certify that the preceding 53 paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 18 May 2005
Date of Decision 30 May 2005
Representative for the Applicant Self represented
Representative for the Respondent Ms G Bennett, Clayton Utz
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