Vatubuli and Minister for Immigration and Border Protection (Migration)
[2016] AATA 695
•9 September 2016
Vatubuli and Minister for Immigration and Border Protection (Migration) [2016] AATA 695 (9 September 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1044
Re
Isoa Vatubuli
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 9 September 2016 Place Sydney The decision under review is affirmed.
....................[sgd]....................................................
Deputy President S E Frost
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – mandatory cancellation of visa – application for revocation of cancellation decision – failure to pass character test – substantial criminal record – discretion to revoke mandatory cancellation – Ministerial Direction No 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – familial ties to Australia – few impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 ss 499, 500(1)(ba), 501, 501(3A), 501CA(4)
SECONDARY MATERIALS
Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Deputy President S E Frost
9 September 2016
INTRODUCTION AND BACKGROUND
Isoa Vatubuli is a 23-year-old Fijian national who has had his visa cancelled on character grounds. He has asked the Tribunal to reinstate his visa so that he can remain in Australia.
Mr Vatubuli’s visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act). That is a mandatory cancellation provision. It applies whenever a visa holder:
(a)has a ‘substantial criminal record’, as defined in the Act; and
(b)is serving a full-time sentence of imprisonment for an offence or offences against Australian law.
Despite the mandatory nature of s 501(3A), the Minister has the power, as a matter of discretion under s 501CA of the Act, to revoke a visa cancellation. In Mr Vatubuli’s case, an authorised delegate of the Minister considered whether to revoke the cancellation of the visa but decided against taking that course. The decision not to revoke the cancellation of Mr Vatubuli’s visa is reviewable in the General Division of this Tribunal, under 500(1)(ba) of the Act.
THE LEGISLATION AND THE MINISTERIAL DIRECTION
It is not disputed that Mr Vatubuli, having been sentenced to a term of imprisonment of 12 months or more, has a ‘substantial criminal record’: s 501(7)(c) of the Act. It follows that he does not pass the ‘character test’: s 501(6)(a). There is also no doubt that s 501CA of the Act was engaged. In those circumstances the visa cancellation decision can only be revoked if one of two alternatives exists: s 501CA(4). The first alternative is that the Tribunal is satisfied that Mr Vatubuli passes the character test – but clearly, the Tribunal cannot be satisfied that he passes that test. The second alternative is for the Tribunal to be satisfied that ‘there is another reason why the original decision should be revoked’.
Section 499 of the Act empowers the Minister to give written directions about the exercise of powers under the Act, including the discretionary power to revoke a visa cancellation on character grounds. The Minister has made written directions in an instrument entitled Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 65). I must take Direction no. 65 into account in reviewing the delegate’s decision. If, after taking into account the considerations prescribed in Direction no. 65, I am of the view that Mr Vatubuli’s visa should not be cancelled, then it will be the case that ‘there is another reason why the original decision should be revoked’. In that circumstance the original decision will be set aside and in its place a decision will be made to revoke the cancellation of Mr Vatubuli’s visa.
MR VATUBULI’S HISTORY
Mr Vatubuli was born in Fiji in 1993. He grew up in Fiji with his father and his younger brother. His father was a violent man whose mistreatment of Mr Vatubuli’s mother had caused her to leave her husband and her two young sons and come to Australia.
In 2006, when Mr Vatubuli was 13 years old, he came to Australia to live with his mother and her new partner. Mr Vatubuli got on well with his mother and his stepfather and, at least for a time, his life in Australia was happy. In 2009 his stepfather died unexpectedly while on a visit to Fiji. Mr Vatubuli went to Fiji for the funeral and it was decided that he should stay there for a while. He had some learning difficulties and had started to get into trouble at school in Australia. His mother thought it would be good for him to live with her sister in Fiji to try to get back on track.
In 2011, and aged 18, he returned to Australia. Within two months he was getting on the wrong side of the law.
On 17 July 2011 he was pulled up while driving unlicensed. He was charged with that offence and also with driving with middle range prescribed concentration of alcohol (PCA). He was convicted on both counts, receiving a $100 fine for the first offence and a 12-month good behaviour bond and a 6-month disqualification from driving for the second.
On 21 August 2013 Mr Vatubuli was convicted of the offence of ‘goods in personal custody suspected of being stolen’ (committed on 1 August 2013). He was convicted and fined $200.
On 2 December 2013 Mr Vatubuli was convicted of the offences of ‘stalk/intimidate intend fear of physical harm’ and ‘use offensive language in/near public place/school’ (committed on 19 October 2013). For the first offence he was fined $1,000 and for the second he was fined $300.
On 10 April 2014 Mr Vatubuli was convicted of the offence of ‘affray’, committed on 5 October 2013. He was sentenced to imprisonment for three months.
On 5 December 2014 Mr Vatubuli was convicted of the offence of ‘robbery in company’, committed on 23 October 2013. He was sentenced to imprisonment for 2 years and 9 months.
The most serious of those offences are the ‘affray’ and the ‘robbery in company’ offences.
The affray occurred at Cronulla railway station and seems to have started as an unprovoked attack on a young man walking along the platform. Mr Vatubuli heard the altercation taking place and joined in, together with a number of his friends. Mr Vatubuli told the Tribunal he had simply come to the aid of a mate; he also said he was ‘highly intoxicated’ at the time.
Mr Vatubuli says he was also highly intoxicated on alcohol and cannabis during the robbery in company. The victim was walking along the footpath at about 10pm when he came upon Mr Vatubuli and two others. He walked past them and continued on his way. For no apparent reason, according to the sentencing judge, the victim was crash tackled by surprise from behind. He was forced to the ground and punched a number of times. The attackers stole his iPad and ran from the scene. The victim suffered a number of bruises and abrasions to his face, and his rib area was grazed and painful. The sentencing judge described the incident as a ‘wholly impulsive and opportunistic crime’ which was ‘objectively serious’ (T2-70).
OUTLINE OF DIRECTION NO. 65
The purpose of Direction no. 65 is stated to be ‘to guide decision-makers performing functions or exercising powers’ under, among other provisions, s 501CA of the Act: clause 6.1(4). Its purpose is not, and cannot be, to direct decision-makers to exercise their powers in a particular way, either in favour of or against visa holders or visa applicants. The Direction can only tell decision-makers how they must go about exercising their powers. As is stated in clause 6.1(3):
Where the discretion [in s 501CA] to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
This Tribunal is a ‘decision-maker’ for the purposes of the Direction: Annex B – Interpretation.
The Principles set out in the Direction are said to ‘provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA’: clause 6.2(3). Those Principles are found in clause 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk 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.
Clause 7(1) of the Direction explains that, ‘[i]nformed by the principles in paragraph 6.3 above’, a decision-maker ‘must take into account’ the considerations in the relevant Part of the Direction.
Clause 8 proceeds to explain how the considerations should be taken into account:
…
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of the Direction sets out the considerations to be taken into account in relation to a request for revocation of a mandatory cancellation decision. As foreshadowed, the considerations are separated into Primary considerations and Other considerations.
The Primary considerations (clause 13(2)) are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Clause 14 deals with Other considerations. Subclause (1) provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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.
PRIMARY CONSIDERATIONS
Since Mr Vatubuli has no children, the only relevant primary considerations in Direction no. 65 are the protection of the Australian community and the expectations of the Australian community.
Protection of the Australian community from criminal or other serious conduct
Clause 13.1(1) introduces this consideration in the following way:
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.
Subclause (2) provides that 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.
Clause 13.1.1 sets out a number of factors that decision-makers must have regard to. Relevantly they include:
·The principle that violent and/or sexual crimes are viewed very seriously – the sentencing judge described the robbery in company offence as ‘objectively serious’ and there can be no doubt that it was. As for the affray, Mr Vatubuli did not initiate the altercation but he was a willing participant in it. The police report records Mr Vatubuli as having grabbed the victim and thrown him against a fence, causing him to fall to the ground. A bystander was filming the incident on his mobile phone and Mr Vatubuli called out to him ‘If you don’t stop filming I am going to fucking kill you and your dog.’
·The sentence imposed by the courts for a crime or crimes – Mr Vatubuli has twice been sentenced to terms of imprisonment – one term of 3 months and one term of 2 years and 9 months.
·The frequency of offending and whether there is any trend of increasing seriousness – Mr Vatubuli’s first offence occurred within seven weeks of his arrival in Australia. In the space of a little over two years he committed seven offences, on five separate occasions, and his offending became more serious over that period.
Clause 13.1.2 deals with the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In that respect I must have regard to the nature of the harm to individuals or the Australian community should Mr Vatubuli engage in further criminal or other serious conduct, and the likelihood that he will do so, taking into account available information and evidence on the risk of his re-offending.
In my view, there is an unacceptable risk of harm to individuals or the Australian community. It is clear from Mr Vatubuli’s history that a major cause of his offending is his abuse of alcohol and drugs, combined with anger management issues. The substance abuse has been so significant that in his evidence to the Tribunal he indicated more than once that he could not even recall some of the incidents in his police record. On some occasions his conduct has been entirely uncontrolled and there is an unacceptable risk that such dangerous, uncontrolled conduct will be repeated in the future.
Apart from the offences of which he has been convicted, there are instances where Mr Vatubuli has had interactions with the police because of aggressive behaviour caused by his intoxication, albeit those incidents have not escalated to the point where he has been charged. They are detailed at pages 17, 20 and 21 of Attachment F to the Minister’s Statement of Facts, Issues and Contentions and include a ‘heated confrontation with a taxi driver’ in April 2013, his involvement in a brawl in Yagoona in December 2012 and an occasion when the police attended Mr Vatubuli’s home after his stepfather called them because of Mr Vatubuli’s aggressive behaviour under the influence of alcohol.
Mr Vatubuli says he has not touched alcohol or drugs since his incarceration in December 2014. He also says he has turned his life around and become a better person, but there is little independent corroborative evidence, and certainly no evidence from professional practitioners, to that effect. Mere assertions on Mr Vatubuli’s part are no substitute for professional assessments as to Mr Vatubuli’s having dealt with his substance abuse and anger management issues or his current attitude to compliance with the law. He has not undertaken any rehabilitation courses, either while in prison or during the last 12 months in immigration detention. He has provided some reasons for not having done so, including the fact that while he was at Long Bay he was housed in temporary accommodation where no courses were available, and then when he was moved to Silverwater there was not enough time left on his sentence to commence a rehabilitation course. Nevertheless, the Direction specifically provides in subclause 13.1.2(2)(b) that decision-makers should not delay their decisions on a revocation application in order for rehabilitative courses to be undertaken.
The first primary consideration weighs heavily against Mr Vatubuli.
Expectations of the Australian community
This consideration is contained in clause 13.3(1), in the following terms:
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.
In this regard, I also note the content of clause 6.3, as set out earlier in these reasons.
Mr Vatubuli’s offending conduct, in my view, clearly fails to meet the expectations of the Australian community.
Apart from the matters I have already referred to, there are a number of instances of unacceptable conduct while Mr Vatubuli was incarcerated. These are set out at T5-149, with underlying reports at ST5-344 to ST11-350, and include:
·fail to attend muster – 21 May 2014;
·fail prescribed drug test – 25 November 2014;
·create/possess prohibited goods – 27 February 2015;
·fail to comply with Corrective Centre routine – 12 March 2015; and
·disobey direction – 22 April 2015.
On top of that, there is the very serious matter of Mr Vatubuli having breached his bail conditions in late 2013 and early 2014. On 6 November 2013 he had agreed, as a condition of his bail in respect of the robbery in company charge, to be of good behaviour; to report to Campbelltown Police Station daily between 8am and 8pm; to reside at a specified location; and to abide by the conditions of a curfew, which required him not to be absent from his residence between 8pm and 7am (Attachment E to the Minister’s Statement of Facts, Issues and Contentions). He first failed to report to Police on 14 November 2013, little over a week after he accepted the conditions of his bail. He explained to the Tribunal that he was running a few minutes late and thought that if he reported late he would be immediately taken into custody. He chose instead not to report at all, and then to continue not to report for the next three months. He was eventually taken into custody on 15 February 2014.
Mr Vatubuli’s conduct overall displays disdain for Australian law and its law enforcement institutions.
This second primary consideration also weighs heavily against Mr Vatubuli.
OTHER CONSIDERATIONS
International non-refoulement obligations
In a statement dated 26 June 2016, Mr Vatubuli’s mother raised allegations that her son had been assaulted regularly in Fiji by the police and the army. Mr Vatubuli himself had not raised similar allegations in any of the material he had put before the Department of Immigration. Indeed, when the Department was considering in July 2015 whether to revoke the mandatory cancellation of his visa, it issued to Mr Vatubuli a Personal Details Form in which he was asked:
Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
Mr Vatubuli’s response made no reference to mistreatment by the Fijian authorities. Accordingly I do not consider that this consideration weighs in Mr Vatubuli’s favour.
Strength, nature and duration of ties
Mr Vatubuli lived in Australia between the ages of 13 and 16, and then returned to this country when he was 18 years old. His first criminal offence after his return to Australia occurred within two months of his arrival. In the five years and three months since his return to Australia, he has spent a total of two years and nine months in prison or in immigration detention. That has given him little opportunity to contribute positively to the Australian community.
Mr Vatubuli said at the hearing that his relationship with his ex-girlfriend, which had lasted a couple of years, had ended around June/July this year. There is no evidence of a current relationship that would indicate significant ties to someone who has an indefinite right to remain in Australia.
Mr Vatubuli has some family in Australia, including his mother, brother and stepfather.
This consideration weighs only very weakly in Mr Vatubuli’s favour.
Impact on Australian business interests
There is no material to indicate that this consideration is relevant in Mr Vatubuli’s case.
Impact on victims
There is no evidence of the impact the Tribunal’s decision may have on victims of Mr Vatubuli’s criminal offending. I note, however, that a decision to revoke the mandatory cancellation of Mr Vatubuli’s visa may have an adverse impact on members of the Australian community.
Extent of impediments if removed
Clause 14.5 requires me to consider whether there are any impediments to Mr Vatubuli establishing himself and maintaining basic living standards in his country of origin.
Mr Vatubuli is 23 years old and appears to be in good physical health. There are no substantial language or cultural barriers for a person such as Mr Vatubuli, who has spent 15 years, roughly two-thirds of his life, in Fiji. He has family on his mother’s side in Fiji and he has previously received assistance from them through working on his aunt’s farm.
This consideration does not weigh in Mr Vatubuli’s favour.
Additional ‘other’ considerations
There is some evidence that Fiji continues to suffer as a result of Cyclone Winston which affected the country earlier this year. There is no specific evidence of any particular impact on Mr Vatubuli if he were to return to Fiji.
CONCLUSION
Having regard to the considerations specified in Direction no. 65, there is no reason why the original decision, to cancel Mr Vatubuli’s visa, should be revoked.
The decision under review is therefore affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost .......................[sgd].................................................
Associate
Dated 9 September 2016
Date(s) of hearing 18 and 19 August 2016 Advocate for the Applicant New Zealand Advocacy Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
-
Remedies
0
0
0