VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 649
•20 March 2020
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 (20 March 2020)
Division:GENERAL DIVISION
File Number: 2016/5192
Re:VKTT
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:20 March 2020
Place:Brisbane
The Tribunal affirms the decision under review.
...........................[SGD].............................................
Deputy President J Sosso
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No. 79 – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)
CASES
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Barr v Chief Executive of the Department of Corrections [2006] NZCA 313
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v Moolarvie [2008] WASC 37
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] FCAFC 188
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301
VKTT and Minister for Immigration and Border Protection (Migration) [2018] AATA 3377
VKTT v Minister for Home Affairs [2019] FCA 1018
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Cocozza, JJ and HJ Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084
REASONS FOR DECISION
Deputy President J Sosso
20 March 2020
INTRODUCTION
Background
On 28 June 2019, his Honour Justice Burley issued a writ of certiorari quashing the decision of the Tribunal of 13 September 2018 (VKTT and Minister for Immigration and Border Protection (Migration) [2018] AATA 3377) and remitted the matter to the Tribunal, differently constituted, for redetermination according to law – VKTT v Minister for Home Affairs [2019] FCA 1018.
New Zealand history
VKTT (the Applicant) was born in 1979, and is a citizen of New Zealand. Since 1 August 2016, the Applicant has been held in immigration detention, including being accommodated at North West Point IDC Christmas Island and most recently in Yongah Hill Detention Centre in Western Australia – Exhibit 1 AB2 p. 496, Exhibit 2 p. 1.
The Applicant is one of seven children and, unfortunately, grew up in a turbulent and violent household. The Applicant’s father was an alcoholic and his mother was the subject of repeated domestic abuse. The Applicant made the following statement – Exhibit 2 p. 2:
“It was always the same each night, my father would arrive home at around 9 – 9.30 pm and as soon as we would hear the car pull up, my mother would tell us to run to our bedrooms and stay there, we were ordered not to come out of our bedroom no matter what. We would sit in our rooms hiding under the covers, as we heard our father use extreme violence against our mother. I can still hear my mother’s screams, and crying to this day. Eventually my mother built up the courage to leave my father and move to Australia with my siblings. However, at that time of my life, I felt sorry for my father, and decided to stay in New Zealand with my father. It was only after my mother left, that I realised my father was unaware that my other family members were leaving him. It was after my mother left, my father turned his violence against myself. I began to endure the pain and misery that my mother suffered. I endured this for several years, at the age of 12 I left my father and moved out onto the streets. The streets were very tough for me also, I began to turn to petty crime and drugs and my life began to deteriorate quite rapidly.”
The Applicant expanded on this part of his life when he gave evidence on 12 November 2019. He recalled hearing his father attacking his mother – Transcript (Tr.) 12.11.2019
p. 9:
“When my mother – when my father was violently attacking my mother, I remember when I was a kid I couldn’t do anything, even open the door and I was shaking. Even – even wetting my pants because of the violence that my father was towards my mother.”
The Applicant’s account of this unfortunate situation was confirmed by his mother (AS) who gave evidence on 13 November 2019 – Tr. 13.11.2019 pp. 105 – 107.
It was also confirmed by the Applicant’s cousin, Ms Feyona Loketi, who gave the following evidence – Tr. 13.11.2019 p. 131:
“We used to go to his family house a lot, my dad and his mum are brother and sister. He was a troubled kid, and the home wasn’t stable. Their kids would have to come over to our house because their parents were fighting. Their dad pretty much drank every night. I remember one day, one night, my aunty brought them all over to our house, and all the kids – well, VKTT and his siblings, and his dad had come over to our house and kicked our door down and had taken off. It was so bad the helicopters and police came over because he had taken – not him – VKTT’s father. It wasn’t a stable relationship or it wasn’t – even though his mother tried to make a stable home, she – she believes in Jesus and always go to church, it was just their father who was always wearing them down. He was just not reliable, and it ended up with their home being broken.”
Having listened to the harrowing testimony of AS, as well as the testimony of Ms Loketi, the Tribunal does not doubt that the Applicant and his family were the victims of sustained and extreme violence by their father, and that this ongoing violence resulted in the Applicant becoming homeless and living a life of crime where alcohol and drugs were regularly abused.
The Applicant testified that he was involved in Auckland based gangs, and in particular the “Crips” gang – Tr. 12.11.2019 pp. 59 - 60.
Whilst residing in New Zealand the Applicant was convicted of 46 criminal offences and sentenced to terms of imprisonment from one month to three years. The offences committed by the Applicant were serious and included aggravated robbery, burglary and theft, threatening to kill or do grievous bodily harm, and resisting police (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) p. 1).
The Applicant’s New Zealand criminal history commenced in May 1996 when he was convicted and sentenced in the Auckland District Court for common assault and resisting police. From that time the Applicant was being regularly charged for burglary, receiving stolen property, aggravated assault and resisting police offences. The Applicant’s long and frequent history of breaking the law culminated in May 2003 with him being sentenced to three years imprisonment for aggravated robbery and two charges of unlawfully taking a motor vehicle – Exhibit 1 AB1 pp. 286 – 288.
The Applicant also had a history of New Zealand traffic offences, with convictions for driving while disqualified, failing to give his name and address and dangerous driving – Exhibit 1 AB1 pp. 288 – 289.
The Applicant’s time in New Zealand came to a violent close in 2005 when he was viciously assaulted by a group of men outside his home whilst his ex-partner, Ms Jane Joseph, was present – Tr. 12.11.2019 p. 10:
“I have fears of returning back to New Zealand because I was brutally attacked when I was out in the street. I was at home. A group of men have come to my house and forced their way in while my ex-partner, Jane Joseph – she’s also going to be witness today, she witnessed a group of men approach me when I was in my house, then that – and it occurred outside my house where I was machete-ed, stabbed, hammered. I was – I fought for my life and I was taken to hospital. My family from Australia flew in from Australia to be there in hospital and I woke up on – I woke up in the hospital. During that time of that attack, I didn’t realise what was going on, it happened so fast. They brutally stabbed me, machete-ed. Like I was helpless. I couldn’t do anything.”
The Applicant testified that the men who assaulted him were members of the King Cobras and Bloods gangs, and he was assaulted because “I sort of like ran a marijuana shop…” – Tr. 12.11.2019 p. 61. Later he added that the assault had racial overtones because his attackers were Samoans and he was of Tongan ancestry – Tr. 12.11.2019 p. 62.
Ms Joseph provided a statement dated 12 September 2019 in which she confirmed that the Applicant was “viciously attacked by gang members and ended up in hospital with serious head injuries and stab wounds” – Exhibit 2 p. 108.
Ms Joseph also testified on 12 November 2019 that when she was living with the Applicant in New Zealand he was “running with some gangs back then” and that he was a drug user, in particular marijuana – Tr. 12.11.2019 p. 46. The Applicant testified that he was also using “meth” in New Zealand, and took up this habit again in Australia in 2015 – Tr. 12.11.2019 p. 24.
It would appear from contemporaneous Police reports that on the evening of
24 November 2005 the Applicant was visited by three persons. The Applicant was dragged from his home to a carport where he was brutally beaten and he was struck on the head at least twice with a tool described as a mallet/sledgehammer. He was also stabbed in the abdomen with a weapon described as a sickle/machete.
The assailants fled after Ms Joseph intervened. Ms Joseph heard the Applicant speaking in Tongan with the assailants.
The Applicant was taken to the Auckland Hospital and underwent exploratory surgery which revealed a fractured skull and a penetrating stab wound to the abdomen. When the Applicant was admitted to hospital he was in a critical and life threatening condition – Exhibit 1 AB15 pp. 788 – 795.
Shortly after the Applicant was attacked, Ms Joseph moved to Australia with her son. She testified that she was traumatised by the attack on the Applicant. Subsequent to
Ms Joseph leaving New Zealand, the Applicant also decided to come to Australia.
Australian history
The Applicant arrived in Australia on 4 March 2006 and was at that time 26 years of age. The Applicant falsely declared in his Incoming Passenger Card that he had no criminal history in New Zealand – Exhibit 1 AB1 p. 184.
The Applicant has, since his arrival, resided in Australia on a Class TY Subclass 444 Special Category (Temporary) visa – Exhibit 1 AB1 p. 29.
For approximately three years after arriving in Australia, the Applicant was not charged with any criminal offences. However, on 30 March 2009, the Applicant pleaded guilty at the Wynnum Magistrates Court to four offences of driving a motor vehicle whilst over the alcohol limit and driving without a licence – Exhibit 1 AB1 pp. 275 – 276. Magistrate Sarra recorded convictions, ordered that the Applicant be imprisoned for three months but suspended the sentences forthwith and placed him on probation.
The Applicant appeared before Queensland Courts on a further seven occasions between 2010 and 2016. As in New Zealand, the Applicant showed a troubling disregard for the traffic laws and was convicted for driving without a licence, driving an unregistered vehicle and a range of other traffic offences. Further, the Applicant’s propensity to be involved in property crimes again resurfaced with convictions for possessing tainted property, attempted fraud and the like.
Of most concern, however, was the escalation of criminality with each passing year.
Whilst the Applicant started his criminal history in Australia committing relatively petty crimes, by 2015 the Applicant was engaging in serious criminal activity.
On 4 September 2015, the Applicant was convicted at the Brisbane Magistrates Court of the offences of possessing dangerous drugs (two charges), unlawful possession of weapons, possession of property suspected of having been acquired to the purpose of committing a drug offence, possessing utensils or pipes etc. that had been used, and not having authority to possess explosives. The presiding Magistrate recorded convictions and recorded a probation period of 18 months – Exhibit 1 AB1 p. 25.
Unfortunately, less than six months later the Applicant again appeared in the Court facing serious charges. On 11 February 2016 the Applicant appeared in the Wynnum Magistrates Court again before Magistrate Sarra. On this occasion, the Applicant was convicted of possessing dangerous drugs (two charges), possessing tainted property, assault or obstructing a police officer, breach of a probation order, going armed so as to cause fear, unlawful use of a motor vehicle and dangerous operation of a motor vehicle. The Applicant was sentenced to 12 months imprisonment – Exhibit 1 AB1 pp. 24 – 25.
It is instructive to set out at some length the sentencing comments of Magistrate Sarra as he clearly explains in plain English the nature and the seriousness of the Applicant’s offending – Exhibit 1 AB1 pp. 376 – 378:
“BENCH: I mean, that’s really what this society’s about. People come here from all over the world and everyone’s welcome, but leave the bullshit outside. If you want to be here and raise a family, become a productive member of the community, raise your children – grandchildren to become productive members of our community, you’re more than welcome. But if you come here and think that you can stand over people and use threatening tactics, steal property and carry on like a pork chop, you will be very quickly isolated and then possibly deported back to New Zealand. This is an opportunity for you to make something of your life and create a future for your grandchildren.
Now, when you listen to this particular story, I still don’t understand how or why a bloke with your age or experience would get caught up in this sort of crap.
DEFENDANT: Yeah
BENCH: I mean, you should have been at home, looking after your kids or your grandkids.
DEFENDANT: Yeah
BENCH: But having said that, your behaviour was serious enough to warrant terms of imprisonment.
I do note that when you did go into custody, that you haven’t made any application for bail, so you’ve suffered the indignity of being incarcerated now in pre-sentence for 102 days. Now, that’s something that I have taken into account. You have not put the prosecution to proof and you have pleaded guilty to all charges.
What makes it difficult for you, [VKTT], is that you’ve got a pretty shithouse criminal history from New Zealand and you come to Australia and there has been sporadic offending here in Queensland on your Queensland record. When you look at the history, though, it was only in recent times, 2015, that these drug offences started to appear on your record. Now, you were placed on 18 months’ probation on the 4th of September 2015, subject to weapons and drug related offences.
Now, when you look at the society we have today, we are fighting a battle with drugs in our community. It’s destroying us and robbing our community of the future potential of these young people. Now, if we were to do nothing about these filthy poisons that are in the community, you’ve just got to think for a moment what sort of a future your grandchildren are going to be growing up in, in the next – well, two generations from now. We are at war with the drugs now in our community. It's robbing us of so much potential. Let the drugs win, let these grubs take over with their drug empire, what sort of a community do your children grow up in? Do you understand that?
DEFENDANT: Yes, your Honour.
BENCH: Now, when I look at this incident on the night in question, the victim … he was known to you, by the sounds of it, albeit through the connections that you had with one of these idiots who came to your house and said ‘We’ve got to go and talk to him about a debt’”.
Now, what makes it difficult for you is that you were the one who drove the car in, you were the one who produced the weapon, you were the one who seemed to lead the class of clowns when you got out of the car…
Now, as a consequence of your presence, particularly the unknown nature of the weapon that had been concealed under a cloth … showed a bit of intelligence and took flight. That was the impact of the fear that you instilled in that person. Now, he abandoned his vehicle. He didn’t run too far, but when he did come back, by this time, you had taken possession of the vehicle – in fact, you were driving it. Now, I don’t see any deviation where you drove towards him. I saw that you accelerated in the direction which would have been a northerly direction… was in front of the vehicle. He jumped to get out of the road of the car. The car did hit him and he has landed on his hip. He seemed to be struggling with what appeared to be an injury on what I thought was his left hip. He seemed to be hobbling a bit. But then that seems to be the extent of it.”
Set out below is a Table listing the criminal history of the Applicant in both New Zealand and Australia:
Australia
Court and Date Offence(s) Result Wynnum Magistrates Court
11/02/2016
1. Breach of probation order
2. Possess tainted property
3. Unlawful use of motor vehicle & dangerous operation of a vehicle
4. Going armed so as to cause fear
5. Assault or obstruct Police Officer
6. Possessing dangerous drugs (2 charges)
7. Possessing utensils or pipes etc that had been used
1. Re-sentenced for original offences: 9 months goal
2. 3 months goal, concurrent
3. 12 months goal, concurrent, licence disqualified for 6 months
4. 9 months goal, concurrent
5. 6 months goal, concurrent
6. Not further punished
7. Not further punished
Conviction recorded for all offences
Brisbane Magistrates Court
04/09/2015
1. Possessing dangerous drugs (2 charges)
2. Unlawful possession of weapons
3. Possess utensils or pipes
4. Possess property suspected of having been acquired for the purposes of committing a drug offence
5. Authority required to possess explosives
1. On all charges - conviction recorded and 18 months’ probation Brisbane Magistrates Court
28/07/2015
1. Breach of bail 1. Fined $250 Brisbane Magistrates Court
07/07/2014
1. Attempted fraud – dishonestly gain benefit/advantage
(2 charges)2. Possess tainted property
3. Contravene direction or requirement
1. On all charges - fined $600 Wynnum Magistrates Court
05/01/2010
1. Breach of suspended sentence (drive BAC, disqualified driving) 1. Suspended sentence partly invoked on each breach, conviction, 2 months goal Wynnum Magistrates Court
30/11/2009
1. Breach of probation order (re: drive under influence [under 0.15%] (3)) 1. Fined $100 Brisbane Magistrates Court
31/07/2009
1. Wilful damage 1. Fined $300, compensation $500 New Zealand
The Applicant received a conviction on all offences listed below:
Court and Date Offence(s) Result Auckland District Court
03/03/2004
1. Aggravated Robbery (manually)
2. Unlawful take Motor Vehicle Etc (2 charges)
1. 3 years goal
2. 2 years goal (for each charge)
(served concurrently)
Waitakere District Court
14/03/2002
1. Unlawful takes motor vehicle Etc
2. Receives property (over $5000) (2 charges)
3. Possess Firearm (without licence)
4. Receives property (under $500) (3 charges)
5. Burgles (other prop) ($500-$5000) by night
1. 6 months goal
2. 6 months goal (for each charge)
3. 2 months goal
4. 6 months goal (for each charge)
5. 6 moths goal
(served concurrently)
Auckland District Court
17/08/2000
1. Other Aggravated Robbery
2. U/L possess firearm
1. 3 years goal
2. 1 year goal
(served concurrently)
Auckland District Court
12/11/1999
1. Receives property ($500-$5000) 1. 7 days goal
(served concurrently)
Auckland District Court
12/08/1999
1. Burgles (other property) ($500-5000) by night
2. Unlawful takes motor vehicle
1. 5 months non-residential periodic detention & reparation $250
2. 5 months non-residential periodic detention & reparation $250
Auckland District Court
03/06/1999
1. Receives property ($500-$5000) 1. Fined $150, return of property North Shore District Court
04/03/1999
1. Resist Police
2. Unl Get Into/Upon M/Vehicle-M/Cycle
3. Assault police (manual)
1. Convicted & discharged
2. 14 days goal
3. 14 days goal
(concurrent sentence)
Auckland District Court
09/12/1997
1. Assault Police (2 charges, manual)
2. U/L enclosed yard
3. Burgles (other property) ($500-5000) by night
4. Assault person with stab/cutting instrument
5. Receives property ($500-5000)
6. Failure to answer District Court bail
7. Breach of periodic detention
8. Burgles (other property) ($500-5000) by day
9. Aggravated assault (manually)
10. Burgles (other property) ($500-5000) by day
11. Threatens to kill / do GBH (firearm)
12. Wilful damage
1. 3 months goal (for each charge)
2. Convicted & discharged
3. 2 years goal
4. 2 years goal
5. 1 year goal
6. Discharged
7. 3 months goal
8. 2 years goal
9. 2 years goal
10. 1 year goal
11. 1 year goal
12. 3 months goal
(served concurrently)
Auckland District Court
04/06/1997
1. Burgles (other property) ($500-5000) by day (2 charges)
2. Receives property ($500-5000)
1. 4 months non-residential periodic detention (for all charges) Auckland District Court
15/04/1997
1. Failure to answer District Court Bail 1. Fined $150 Auckland District Court
25/10/1996
1. Theft of Motor Vehicle 1. 150 hours community service Auckland District Court
24/07/1996
1. Common assault (manually)
2. Resist Police
1. To come up for sentence if called upon – 6 months (both charges)
New Zealand Traffic Conviction History
Court and Date Offence(s) Result Auckland District Court
13/01/2006
1. Drove While Licence Suspended or Revoked 1. Convicted, 40 hours community service & 6 months disqualification from driving Auckland District Court
08/11/2005
1. Drove While Disqualified 1. Convicted, 40 hours community service & 6 months disqualification from driving Waitakere District Court
14/03/2002
1. Failed to give name and address on demand
2. Drove A Motor Vehicle in a Dangerous Manner
3. Unlicensed Driver Failed To Comply with Prohibition
1. Convicted & Discharged
2. Convicted, 1 month goal & disqualified from driving for 2 years
3. Convicted & Discharged
Auckland District Court
10/09/1997
1. Failed To Give Name and Address on Demand 1. Convicted, fined $300 Behaviour whilst incarcerated
The Applicant was involved in three incidents whilst he was incarcerated in Queensland: 27 December 2015; 2 February 2016; and 14 June 2016. The Tribunal had the opportunity of viewing CCT footage of each of these incidents on 14 November 2019.
The first incident, on 27 December 2015, took place at Unit D1 of the Arthur Gorrie Correctional Centre. The video footage shows the Applicant playing ping pong and making coffee close to the ping pong table. The Applicant was subsequently approached and then confronted by a number of inmates, two of whom attacked him, one with a sandwich maker and the other with a sock containing a bar of soap – Tr. 14.11.2019 pp. 205 – 207. The video shows a number of inmates involved in a fight which lasted for a very short time. The Applicant subsequently claimed that he was involved in an altercation with six inmates – Exhibit 1 AB2 p. 469.
The Applicant was hit on the head with the sandwich maker and suffered an injury to his eyes and a laceration to his head. A fellow inmate named Calvin who intervened to assist the Applicant was also assaulted and one of his arms was broken – Tr. 14.11.2019 p. 208, Exhibit 1 AB2 p. 469.
The legal representatives of the Respondent made the following submissions about this incident (Respondent’s Closing Submissions (RCS) para 16):
“The first incident occurred on 27 December 2015 – the Applicant became involved in a dispute which left him seriously injured. The Respondent submits that, while the video of the incident is not clear, the Applicant had his fists raised before the other participant in the fight, and appears to advance on the other participant. The Respondent submits that the Applicant had the opportunity to call off the fight but chose not to.”
The Tribunal does not accept the Respondent’s version of the altercation. The video footage is incomplete and unclear. It is, however, obvious from the video footage that the Applicant was, at the outset, the victim of an assault and he responded by fighting his assailant and then another inmate. The video footage shows that the Applicant struck the second inmate on a number of occasions. The Applicant testified that by this stage he had been hit with the sandwich maker by a third inmate. A fourth inmate subsequently hit the Applicant with the sock containing the bar of soap. The Applicant was asked if he could have called off the fight by asking for a guard. In response the Applicant testified that by “this point I was paranoid. I was – I wasn’t thinking. I was in a situation that – that I could have made those choices, but at that time in the moment I was defending myself” –
Tr. 14.11. 2019 pp. 211 – 213.Having viewed the video, the Tribunal accepts the Applicant’s version of what occurred. Whilst in theory the Applicant could have taken steps to de-escalate the situation, it is patently obvious that a melee occurred, and the Applicant was in justifiable fear of his safety and acted instinctively rather than in a measured and rational fashion. The fact that he acted in the manner that he did is explicable having regard to the circumstances that prevailed.
The following exchange occurred at the Hearing – Tr. 14.11.2019 p. 215:
“DEPUTY PRESIDENT: … But, from my own experience, if you’re in the middle of something like that, adrenalin kicks in and that’s what usually occurs. And that’s what I’m observing. I mean, clearly, he had opportunities to deescalate. But I haven’t been in prison and I haven’t been the subject of concerted assault. But I presume in those sort of situations, instinct of survival kicks in.
MR RAY: The man he was engaging with is much smaller than him. He advances towards him several times, he strikes him. It’s my submission that he’s the aggressor in the fight.
DEPUTY PRESIDENT: Well, he may have been, as it appears to me, to have been provoked, assaulted. I mean, and he’s in prison. He’s not in the back of a, you know, a Salvation Army citadel handing out tea and biscuits. I mean, it’s a different – the milieu of a gaol is much different than the milieu that we’re used to.
MR RAY: The applicant’s posturing and continuing after the guards have cornered him is, in my submission, another indication that he was the aggressor in the fight, and not a man who was minding his own business when he was assaulted.
DEPUTY PRESIDENT: Clearly his behaviour at this stage is that of a person who is enraged and wants to continue the fight. That’s obvious from looking at it. But what’s not obvious is the events that have led him to get to that state of anxiety and anger…”
The second incident took place on 2 February 2016 at Unit C3 of the Arthur Gorrie Correctional Centre. After the first incident the Applicant was taken first to the medical unit and then transferred to Unit C3. The Applicant was involved in an altercation with two inmates, one of who stabbed him several times in the neck and arms – Tr. 14.11.2019
p. 218, Exhibit 1 AB2 p. 469.
The Applicant testified he was approached by an inmate he did not know – Tr. 14.11.2019 pp. 219 - 220:
“DEPUTY PRESIDENT: Just one second, VKTT, did you know the person? No…
The person who stabbed you, did you know the person?---No.
You’d never met the person before?---This is why we had – we’d spoken – he’s from the incident from the last – the first incident.
So what did he say to you? What did he say to you, anything?---He – he approached me and goes, do you remember me? And I go, no, I don’t, I think, and then I realised that he was in the – he was in the altercation with me in the first unit in D1….
But did he then proceed to stab you, or were there other words spoken?---We had – we hit a brick wall and then he was reaching up to me, so I was defending myself and we started punching and – and I did not realise he had a knife.
Okay. So, a fight breaks out and he produces a shank and stabs you?---Yes.”
The video footage shows the Applicant throwing a baton and then a broomstick at an inmate who was moving towards him with a shank in his hand – Tr. 14.11.2019 pp. 226 – 227.
The Tribunal does not accept the Respondent’s submission (RCS para 17) that the Applicant had the opportunity to stop the incident. The video footage shows only part of the incident, and all that can be sensibly drawn from the video footage is that the Applicant was being approached by an inmate with a knife and with the apparent intention of doing him harm. The Applicant took what measures he could to protect himself. The cause of the incident and the allocation of blame are impossible to ascertain from the video footage. However, what is abundantly clear is that an inmate had armed himself with a shank and used the weapon to inflict serious injuries to the Applicant. Clearly it is not the normal practice of an inmate to be armed with a shank, unless that person has an intention to use it. The obvious and sensible conclusion to be drawn is that the Applicant was the victim of a premeditated attack whose aim was to injure or kill him.
In reaching this conclusion it should be observed that aspects of the Applicant’s evidence were contradictory and unsatisfactory. At first he indicated that he was the subject of a racial attack by Samoans against Tongans. Later he claimed it was an attack by Caucasians against South Sea Islanders, and then he broadened that to a Caucasian and Aboriginal attack against South Sea Islanders – Tr. 14.11.2019 p. 229.
The Applicant also surmised that his assailant had been moved into D1 that day, yet could not give any explanation why he would be armed with a shank. This was especially strange as the inmate would have been searched when he was transferred to D1 –
Tr. 14.11.2019 p. 230.
In short, the Applicant’s evidence was at times vague and changed with the passage of time and the nature of the questions posed.
The final incident occurred on 14 June 2016 at the Brisbane Correctional Centre. There is no dispute that the Applicant was approached by two inmates, one of whom was a relative of an inmate who the Applicant traded blows with at Unit D1 of the Arthur Gorrie Centre. The two inmates assaulted the Applicant and during the course of a short fight punches were exchanged. The Applicant was taken to the medical unit and suffered facial bruising – Tr. 14.11.2019 pp. 232 – 235.
In his statement of 19 October 2019, the Applicant provided the following account of the assaults he experienced and the impact it has had on him – Exhibit 2 p. 3:
“I was assaulted on two occasions whilst in a Queensland Prison, the second assault, was severe, it involved numerous lacerations to my body, when I was stabbed by a prison inmate with a prison made knife many times. These assaults have had three different effects on myself.
Near Death Experience – at the time of the assaults and during my time in hospital when I underwent surgery, I feared that I may never see my family again. This made me determined to change and to ensure I am the best man I could be, not just when I got out, but from that very moment.
Genuine Fear – the assaults instilled genuine fear into me. I am determined never to be placed in a position like that again, where my life was inches away from being taken. This has acted as a huge deterrent never to find myself within a prison again.
Ongoing Medical Issues – the assaults have left me with continuous pain and discomfort. I am currently, over four years later still, undergoing treatment and tests for issues that have arose from the assaults. I have numbness in my face, my arm I have slurred speech, and I have lost some of my eyesight. I am receiving medical treatment and also seeking psychological care for this incident.”
During the Hearing (Tr. 14.11.2019 p. 241) and in subsequent submissions (RCS para 19), Mr Ray, on behalf of the Respondent, referred to the Applicant having committed his most serious offences after he was released from incarceration. This proposition was put to the Applicant during cross-examination and he agreed with Mr Ray (Tr. 14.11.2019
p. 241).
In fact, the Applicant had been incarcerated for 102 days prior to his appearance before Magistrate Sarra at the Wynnum Magistrates Court on 11 February 2016 – Exhibit 1 T22 p. 376. Consequently, the Applicant was incarcerated throughout the time the three incidents occurred, and he did not commit his most serious offences upon being released from gaol, as he has never been released into the community.
The Tribunal has not, therefore, taken into account the Respondent’s submissions that the Applicant committed his most serious Australian crimes after being released from detention.
Visa cancellation
In 2012 the Applicant’s criminal history came to the attention of the Department of Immigration and Citizenship.
On 2 May 2012, a delegate of the Minister wrote to the Applicant informing him that his visa was being considered for cancellation on the grounds of his substantial criminal record. The delegate provided the Applicant with a copy of his New Zealand criminal history as well as his incoming passenger card – Exhibit 1 AB1 pp. 175 – 184.
A similar letter was forwarded to the Applicant on 22 April 2013 by another delegate of the Minister. In this letter, however, attention was focused on the Applicant’s criminal history in Australia – Exhibit 1 AB1 pp. 237 – 242.
On 21 June 2013, the delegate wrote to the Applicant informing him that a decision had been made not to cancel his visa on character grounds. Immediately following this sentence was this warning – Exhibit 1 AB1 p. 61:
“Please note: this decision does not mean that your case cannot be considered again under s 501 in the event of further criminal offending by you.”
The Applicant was on notice that the relevant Australian authorities were aware of his extensive criminal history, and despite this had exercised leniency and given him a chance to prove that he would be a law-abiding person contributing to the greater public good. The Applicant was further put on notice that if he continued to wilfully break the laws of Australia he was at risk of having his visa terminated. In short, the Applicant knew that if he continued to commit criminal offences he would be placing his visa status in significant jeopardy. His subsequent criminal history needs to be understood in this context.
On 2 June 2016, a delegate of the Minister cancelled the Applicant’s visa pursuant to
s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that the Applicant passed the character test as prescribed by s 501(6) of the Act. In reaching this conclusion the delegate noted that the Applicant had a substantial criminal record within the meaning of s 501(6)(a). The delegate referred to s 501(7)(c), which provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more – Exhibit 1 AB1 p. 29.
On 26 June 2016, the Applicant lodged a request for revocation of the mandatory visa cancellation – Exhibit 1 AB1 pp. 71 – 82. The reasons given by the Application for the revocation of the visa cancellation were as follows – Exhibit 1 AB1 p. 73:
“I would like to stay in Australia because my children live here. I have a 17 yr old son and 7 yr old daughter who are still dependant on me financially and my kids both come over to live with me during the week and over weekends. My daughter lives with me and my 2 grandaughters [sic]. I need to here with them as moving me away will deprive all of us. My mother, brothers and sisters all live in Australia and are NZ citizens & Mum, 3 sisters and 2 brothers are Aus citizens. I’d like to change my ways and know that this this I will as I plan to move my family and be closer with immediate family for support.”
The Applicant’s request was considered by another delegate of the Minister, who, on
20 September 2016, decided under s 501CA(4) not to revoke the original decision – Exhibit 1 AB1 pp. 8 – 9.
As previously noted, on 13 September 2018 the Tribunal affirmed the decision under review, but on appeal to the Federal Court, Burley J remitted the matter back to the Tribunal for determination according to law. His Honour found that the Tribunal had failed to appropriately consider the best interests of minor children and that the Tribunal had failed to take into account the strength, nature and duration of the Applicant’s ties to Australia.
The matter was duly remitted to the Tribunal and has been heard again with the parties being given liberty to present the Tribunal with such evidence as deemed appropriate to ensure that this matter is properly determined according to law.
THE LAW
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
When considering s 501CA(4) the starting point is whether an applicant has made representations in accordance with the invitation given. It is not disputed in this matter that the Applicant has made the requisite representations.
It will be noted that the word “may” is used at the outset in s 501CA(4). The implications of the use of the word “may” were considered by the Full Court of the Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151 where the following observation was made (at [21]):
“…there has been some discussion in the authorities whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view….”
Accordingly, there are two issues to be determined by the Tribunal:
(a)whether the Applicant passes the character test as defined by s 501 of the Act; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, then the cancellation of the Applicant’s visa must be revoked – Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 at [31] (Marzano) per Collier J.
Further, the “reason” in s 501CA(4)(b)(i) is not any reason but rather the determinative reason for revocation arrived at after a balancing exercise. Her Honour Justice Collier made the following observations in Marzano (at [32]):
“In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38] – [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case…”
(emphasis in the original)
THE CHARACTER TEST
Section 501 of the Act empowers the Minister to both refuse to grant a visa and also to cancel a visa already granted, if the Minister forms the opinion that the person does not pass the character test.
The character test is defined in s 501(6). Importantly, a person does not pass the character test if “the person has a substantial criminal record” – s 501(6)(a). A “substantial criminal record” is defined by s 501(7) and includes:
“(c) the person has been sentenced to a term of imprisonment of 12 months or more…”
As Tamberlin J observed in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [68]/310 (Djalic):
“The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences.”
In the earlier Full Federal Court decision of Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 Lander J quoted with apparent approval part of Ministerial Direction 21. Lander J’s reasoning was agreed to by both Carr and Sundberg JJ. As Tamberlin J observed in Djalic ([71]/310) this suggested that their Honours “… considered that the direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501.” Lander J observed (at [104]):
“In Direction 21 the Minister says:
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising directions under section 501, for the protection of the Australian community.
…
2.The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter into or to remain in the community.”
After quoting the above extract from Direction 21, Lander J then observed:
[105]The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[106]Where an applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospect of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.
[107]In short, any matter that would move the Minister to allow a person of proven bad character (as it is defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.
THE HEARING
A Hearing was convened in Brisbane on 12 – 14 November 2019.
The Applicant was represented by Mr Geoffrey Foster of Counsel instructed by Ms Zali Burrows. The Respondent was represented by Mr Adam Ray.
The Applicant gave evidence on each of the three days of the Hearing.
Apart from the Applicant, the Tribunal heard evidence on 12 November 2019 from Mr Kurt Tuteru, Ms Jane Joseph, Ms Ebony Dobson and Mr NS. On 13 November the Tribunal also heard evidence from Ms LS, Mr Jonathan Patu, Ms AS, Ms Kalo Tuimoala,
Ms Feyona Loketi and Ms LH. Finally, on 14 November evidence was received from
Mr Clint Movric, Mr Ryan Croker and Ms Carli Ngateina.
In order to maintain the confidentiality of the Applicant, acronyms have been used for those witnesses who have the same surname as the Applicant. In addition children under 18 years of age have not been identified and parents or relatives having the same surname have been referred to by acronyms.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As discussed above, a person will not pass the character test if they have a “substantial criminal record” which term is defined to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more – s 501(7(c).
On 11 February 2016, the Applicant was convicted of multiple offences and sentenced to a term of imprisonment of at least 12 months – Exhibit 1 AB1 pp. 24 – 25.
As previously noted, the Applicant, whilst residing in New Zealand, was convicted of at least 46 criminal offences in the period leading up to 2004. Again, after arriving in Australia, the Applicant, after a brief interregnum, again started committing criminal offences.
The Tribunal is satisfied that the Applicant has a substantial criminal record (s 501(6)(a)) as defined by s 501(7)(c) and does not pass the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
Subsection 501CA(4) provides for the revocation of the initial decision to cancel a visa, if, inter alia, there is another reason why the original decision should be revoked –
s 501CA(4)(b)(ii).
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal is required to comply with any Directions made by the Minister under s 499 – s 499(2A), Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
In this matter Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) applies.
The Direction makes clear that its central objective is the protection of the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens – cl. 6.2(1).
The Direction is intended to provide a framework within which decision-makers approach the task, inter alia, of deciding whether to cancel a non-citizen’s visa. The relevant factors that must be considered in making such a decision are identified in Part C – cl. 6.2(3).
Part C of the Direction identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
Paragraph 6.3 of the Direction set out the Principles underpinning its operation.
Subparagraph 6.3(1) states that Australia has a sovereign right to determine whether
non-citizens who are of character concern are allowed to remain in Australia. Remaining in Australia is a privilege conferred on non-citizens and is done so with the expectation that they will be law-abiding and not cause or threaten harm to either individuals or, more generally, the Australian community.
Subparagraph 6.3(2) observes that the Australian community expects the Australian Government to cancel the visa of a non-citizen who has committed serious crimes in Australia or elsewhere.
Also of relevance is cl. 6.3(5) which notes that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have participated and contributed to the Australian community for only a short period of time. Conversely, a higher level of tolerance is given to a non-citizen who has lived in the Australian community for most of their life or from a very young age. In this matter, the Applicant came to Australia as an adult, and lived the majority of his life in New Zealand.
Attention must be given to cl. 6.3(6) which states that Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
Conversely, cl. 6.3(7), inter alia, draws to a decision-maker’s attention the consequences of the cancellation of a visa for minor children or other immediate family members of an applicant in Australia.
The Direction also provides specific guidance on how to exercise the discretion. Relevantly, cl. 7(1)(b) provides that a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further, cl. 8 provides guidance on taking the relevant considerations into account.
This paragraph provides that primary considerations should generally be given greater weight than the other considerations – cl. 8(4). Further, one or more primary considerations may outweigh other primary considerations – cl. 8(5).
Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Directions [sic] 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [35].
Subparagraph 13(2) sets out the three primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(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.
The other considerations are set out in cl. 14 of the Direction, namely:
(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.
I will consider in turn each of the primary considerations and other considerations.
PRIMARY CONSIDERATION A – THE PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Introduction
Subparagraph 13.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:
“(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.”
As will be noted, whilst cl. 13.1(1) outlines broad public policy considerations, cl. 13.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.
First, a decision-maker must consider the nature and seriousness of a non-citizen’s conduct to date. Subparagraph 13.1.1 outlines the following factors that a decision-maker must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes 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 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 the Australia, a crime was committed 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.
Second, a decision-maker is required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Subparagraph 13.1.2(1) provides that when a decision-maker is evaluating the risk posed to the Australian community, regard must had 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.
Nature and seriousness of the conduct
Despite the Applicant’s lengthy criminal history, there is no evidence before the Tribunal that he has committed any crimes of a sexual nature. Furthermore, the Applicant has no history of crimes of violence against women, children or vulnerable members of the community.
Despite this, the Applicant’s criminal history in Australia is lengthy comprising convictions for approximately 16 criminal offences between 31 July 2009 and
11 February 2016. During this time the Applicant appeared before the relevant courts on six separate occasions. The fact that the Applicant continued to commit offences after being required to attend court and go through the judicial process suggests that despite his continued pleas of remorse, the spectre of sentencing did not have an effective deterrent effect or ameliorate his propensity to return to his criminal habits.
Attention will now be given to each of the considerations outlined in cl. 13.1.1.
Cl. 13.1.1.(1)(a) – violent or sexual crimes
The Applicant has been convicted of crimes of violence. The legal representatives of the Applicant submitted (Applicant’s Short Submissions (ASS) p. 17) that the Applicant had only committed one crime of violence, namely the assault of police officers.
The Tribunal does not accept this submission as it downplays and unduly truncates the events that culminated in the Applicant assaulting police officers who came to his place of residence.
The Applicant kept company with persons who, according to Magistrate Sarra, were involved in the drug trade. Those persons came to the Applicant’s home and discussed the recovery of a drug related debt. The Applicant was contacted by these persons because, as the sentencing transcript makes clear, he was the “standover” man.
As Magistrate Sarra observed, it was the Applicant who “drove the car” who “produced the weapon” and “lead the class of clowns” whose object was to obtain money by threats of violence and fear – Exhibit 1 AB1 p. 377.
The Applicant concealed a weapon under cloth and instilled fear in the person they visited. However, what is particularly serious and troubling, is that when the indebted person fled in fear, the Applicant took control of his abandoned vehicle and actually drove it towards him. Not only did the Applicant drive in a manner designed to cause fear, he actually hit the indebted person with the vehicle and injured his left hip – Exhibit 1 AB1 p. 377.
It would appear that the indebted person appeared before Magistrate Sarra because he observed that the indebted person was “hobbling a bit”.
It is not for the Tribunal to speculate why the Applicant was not charged with more serious offences than he was. Clearly, based on Magistrate Sarra’s sentencing remarks, the actions of the Applicant in driving the indebted person’s motor vehicle at speed towards him were irresponsible, dangerous and could have resulted in either very serious injury or the death of the indebted person.
After approximately ten days when the Police came to the Applicant’s home according to Magistrate Sarra he put himself and, as well, “put members of [his] family and put the police in very serious risk of harm”. The Police officers were forced to use a Taser on the Applicant, and despite the use of a Taser “you continued to move toward them, clenched fist, pumped up, ready to repel who you thought were people invading your home” – Exhibit 1 AB1 p. 378.
Of concern is that the Police visit to the Applicant’s home was not random or low key. Magistrate Sarra observed that the Police were carrying out a criminal investigation and that “[t]here was a concern that you may have had weapons in the house, and for that reason, they came prepared” – Exhibit 1 AB1 p. 378.
The Applicant was hit with two or three Taser bolts but “when you were on the ground, maybe it was because you were drunk and stupid, you didn’t feel it, or for whatever reason, you continued to resist. So yes, it is a serious obstruct.” – Exhibit 1 AB1 p. 378.
The totality of the evidence is that the Applicant was keeping company with persons engaged in the sale of illegal drugs. He was engaged by these persons to act as a standover man. The Applicant took a leading role in an exercise designed to instil fear in a person who owed drug debts. However, much worse than this, when the indebted person was suitably in fear of his safety, the Applicant took control of that person’s vehicle and ran him down.
Days later when the Police came to investigate, the Applicant acted in an aggressive and potentially dangerous manner.
The Applicant’s actions were those of a man consorting with criminals, engaging in violent and threatening behaviour and exhibiting disregard for the Police and for authority. It is fortunate that despite the Applicant’s dangerous and irresponsible behaviour no one was seriously injured.
Magistrate Sarra observed that the violent incident with the Police at the Applicant’s home “was one of the more protracted, more serious matters, given the nature of the police involvement, the calibre of the officers involved and the circumstances that transpired” – Exhibit 1 AB1 p. 379.
Having regard to the sentencing observations of Magistrate Sarra, the Tribunal views very seriously the circumstances surrounding the offences of going armed so as to cause fear, dangerous operation of a vehicle and offences against a police officer. The events leading to those charges were replete with risks of persons being seriously injured or killed. The actions of the Applicant were those of man who had little regard for the law or for authority.
The Applicant also has a long history of committing violent crimes in New Zealand. Apart from assaulting or resisting Police (four offences) which is dealt with below, the Applicant was also convicted of – Exhibit 1 AB1 pp. 286 – 288:
·
two offences of aggravated robbery on 17 August 2000 and
3 March 2004;
·one count of driving a motor vehicle in a dangerous manner on 14 March 2002;
·one offence of common assault on 24 July 1996;
·one count of assaulting a person with a stabbing/cutting instrument on 9 December 1997;
·one count of aggravated assault on 9 December 1997; and
·one count of threatens to kill/do GBH (firearm) on 9 December 1997.
When viewed over time, there is a pattern in the Applicant’s long criminal history of engaging in unlawful conduct with an underlying theme of actual or threatened violence. This is a serious matter and weighs against the Applicant.
Cl. 13.1.1(1)(b) – crimes of violence against women or children
The Tribunal has been presented with no evidence that the Applicant has ever committed crimes of a violent nature against women or children.
Cl. 13.1.1(1)(c) - crimes against vulnerable members of the community or government representatives or officials
There is no evidence before the Tribunal that the Applicant has ever been convicted of crimes against vulnerable members of the community.
This subparagraph also requires a decision-maker to consider crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties.
As outlined above, the Applicant’s behaviour towards the Police officers who visited his home was dangerous and potentially life threatening. The Police officers were forced to use a Taser gun on a number of occasions, and even after being partially disabled the Applicant still resisted.
The Applicant put the Police officers, according to Magistrate Sarra, “in very serious risk of harm” – Exhibit 1 AB1 p. 378. Moreover, Magistrate Sarra characterised the events as a “serious obstruct” and as a life-threatening situation.
Unfortunately, the transcript really does not assist the Tribunal in understanding why the Applicant behaved in the manner he did. The fact that he tried to assault the Police officers and they were forced to use a Taser on him, suggests that at the very least, the Applicant either has a serious anger management problem or has little respect for law enforcement officers. It may be that on the day in question that the Applicant was affected by alcohol and or drugs. However, whatever the reason, the Tribunal views very seriously the events outlined above as they suggest that the Applicant, no matter how sincere he may be when appearing before a court or tribunal, has, at times, a propensity to react violently and that violent behaviour is not mitigated by the presence of law enforcement officials performing their lawful duty.
This conclusion is reinforced when consideration is given to the Applicant’s history of criminality in New Zealand. The Applicant was convicted of assaulting or resisting Police on 24 July 1996, 9 December 1997 and 4 March 1999 (two offences) – Exhibit 1 AB1
pp. 287 – 288.
It is tolerably clear, then, that the Applicant has a long history of resisting authority and attempting to assault, or actually assaulting, law enforcement officers. This is a serious matter and weighs against the Applicant.
Cl. 13.1.1(1)(d) – sentence imposed
This subparagraph draws a decision-maker’s attention to the sentence imposed. The maximum penalty the Applicant has received in Australia has been imprisonment for
12 months.
Under the Penalties and Sentences Act 1992 (Qld) specific sentencing guidelines are prescribed. Subsection 9(2)(a) requires a court, when sentencing an offender, to have regard to the following principles:
“(i) the sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is preferable…”
The Applicant has a busy criminal history which is replete with various sentences imposed by judicial officers. The Tribunal notes that the Applicant’s criminal history ended with incarceration for a lengthy period, and, as indicated, imprisonment must only be imposed by Queensland judicial officers as a last resort.
However, just as the Applicant’s Australian criminal history included a sentence of imprisonment, so too did his New Zealand criminal history. The Applicant’s lengthy New Zealand criminal history includes a number of sentences of imprisonment of between four months and two years. However, on 3 March 2004, the Applicant was sentenced to three years imprisonment for aggravated robbery and was denied leave to apply for home detention – Exhibit 1 AB1 p. 286.
Whilst the Applicant’s sentence of twelve months imprisonment in Australia may not appear at first glance to be in the most serious category, this sentence has to be viewed in the context of the Applicant being sentenced to terms of imprisonment in New Zealand on multiple occasions over a long period. Again, this weighs against the Applicant.
Cl. 13.1.1(1)(e) – frequency of offending; any trend of increasing seriousness
This subparagraph focuses on the frequency of offending and whether there is any trend of increased seriousness.
The Applicant’s legal representatives submit that his “offences were not regularly committed and do not reveal a trend” – ASS p 18. For the reasons outlined below, the Tribunal does not accept that this accurately reflects the Applicant’s history of offending.
Dealing with the frequency of offending, it is the case that the Applicant has a lengthy history of criminal conduct in both New Zealand and Australia.
First, the Applicant appeared in New Zealand courts in the period 1997 – 2004 on at least 16 occasions and was convicted of 46 offences. The New Zealand offences were serious and comprised crimes of physical violence, burglary, receiving stolen property, unlawfully taking motor vehicles, unlawful possession of firearms and threatening to kill or do grievous bodily harm – Exhibit 1 AB1 pp. 286 – 288.
The Applicant also had a history of traffic convictions, comprising driving whilst disqualified, unlicensed driving, failing to give a name and address on demand and driving a motor vehicle in a dangerous manner – Exhibit 1 AB1 p. 288 – 289.
It is not the case that the Applicant’s criminality got steadily worse in New Zealand. Unfortunately, from a very young age the Applicant appears to have become a serial offender, and the offences were relatively serious from the outset. The Applicant did not slowly become accustomed to a life of crime and by increments his offending became worse. On the contrary, the Applicant’s New Zealand criminal history indicates that the Applicant became from an early age an offender who was committing crimes of violence and exhibiting a disregard for the property and safety of his fellow New Zealand citizens.
The Applicant’s criminal history in Australia is somewhat different.
After arriving in Australia, the Applicant first appeared before a Court for a criminal offence on 31 July 2009 when he was charged with wilful damage. The presiding Magistrate recorded no conviction and the Applicant was fined $300 – Exhibit 1 AB1 p. 290. The transcript of the proceedings discloses that the Applicant was under the influence of alcohol and jumped onto the bonnet of a parked car in order to climb a wall – Exhibit 1 AB1 pp. 64 - 67. The transcript discloses that the presiding Magistrate did not regard the offence as a serious one and the Applicant did not contest the charge.
Prior to that Court appearance the Applicant had been charged and convicted of a traffic offence (March 2009), namely driving under the influence of liquor, and he appeared before the Wynnum Magistrates Court on 30 November 2009 for a breach of the probation order that had been imposed.
It would appear that in the first few years after arriving in Australia the Applicant’s criminal history was scant, and was basically limited to traffic offences apart from the wilful damage conviction referred to above. Again, it would appear that the wilful damage charge was for a relatively minor matter. In short, for the first few years after arriving in Australia, the Applicant was leading a life where he was “under the radar” of authorities and was not engaging in the serious criminal conduct that was a hallmark of his early years in New Zealand.
Unfortunately, with the passage of time, the Applicant’s criminal conduct became more frequent and more serious. Indeed, it would appear that there was sharp uptake in the Applicant’s criminal behaviour from 2014 onwards.
At the beginning the Applicant’s crimes were of a property nature and did not involve drugs, firearms or the threat of, or actual, violence. By 2015, for whatever reason, this situation changed substantially for the worse.
On 4 September 2015, the Applicant appeared before the Brisbane Magistrates Court charged with nine counts of possessing dangerous drugs, unlawful possession of a weapon, possession of drug utensils and possession of property suspected to have been acquired for the purpose of committing a drug offence and authority required to possess explosives.
Finally, on 11 February 2016, the Applicant appeared before Magistrate Sarra charged with numerous offences relating to both the incident involving the collection of drug debts and the incident with the Police officers at his home.
There is a pattern in the Applicant’s offending in Australia of increasing seriousness. From a relatively crime free beginning for the first few years after arriving, the Applicant’s behaviour began to seriously deteriorate and a pattern of criminality similar to that exhibited in New Zealand reasserted itself. This escalation of criminal offending is particularly concerning as it involved standover tactics, the threat of, and actual, violence and involvement with persons engaging in the sale of illegal drugs.
In conclusion, the Applicant has been convicted of serious criminal offences over a substantial period of time in both Australia and New Zealand, and he has exhibited a pattern of behaviour in Australia of becoming increasingly involved in drug related crimes. The circumstances outlined, therefore, weigh against the Applicant.
Cl. 13.1.1(1)(g) - provision of false or misleading information
This subparagraph focuses on the provision of false or misleading information.
The Applicant failed to disclose his New Zealand criminal history on his Incoming Passenger Card – Exhibit 1 AB1 p 63.
The legal representatives of the Applicant made the following submission – ASS p. 18:
“The Applicant explained how the incoming passenger card was completed [T 99, T 19], the Applicant indicating at one point he did not sign and he was in a rush at the airport, and at another point that he signed it [T 19], at another Stephen Akuvale signed it [T 105]. In any event, he stated [T 99] that he didn’t read the card. Therefore whether the Applicant signed it is unclear.”
When the Applicant first gave evidence at the Tribunal Hearing of 15 December 2017, he gave the following version of events – Exhibit 1 AB21 pp. 901 – 902:
“Do you recall having to provide a form, after you alighted from the plane, to Customs, about yourself?---That was back in Auckland, when I arrived at the airport. I was late and my brother-in-law, Steven Akuvale(?), that had driven me to the airport, that’s Jane Joseph’s brother. As we were attending to the airport I was late and I was struggling with my bags and that, so I asked my brother-in-law to fill the form out while I was doing my baggage and checking in.
Is that what he did?---Yes.
Then what did you do with the form?---As I was checking in with my luggage I asked my brother-in-law to sign the card and fill it out for me, while I checked in. At the time I was listening from the speaker that the flight I was on, that they were boarding in and I need to go to a location at the time, to boarding for my plane.
Did you check the form before it was handed in?---At that time I was in a rush. I signed the card and I put it forward to my check in for my plane.”
It is clear that there was some confusion at the first Hearing about what document the Applicant’s brother-in-law completed, if, in fact, he completed any document.
The document that the Applicant testified he completed was, prima facie, the outgoing New Zealand passenger card, and not the incoming Australian passenger card.
The Tribunal was unimpressed with the Applicant’s testimony. The following exchange occurred at the Hearing (Tr. 12.11.pp. 25 – 28):
“And when you came to Australia – and you gave evidence about this at the last AAT proceedings – you were required to fill in a card on the aeroplane; do you remember that?--- Yes
And on that card, it is recorded that – that you did not have any criminal convictions; do you remember that?---Yes
And I think the evidence you gave at the last AAT proceedings was that somebody else had filled out that card for you; do you remember saying that—Yes. Yes.
Was that true?---Yes, I have corresponded with Home Affairs about that, with a response, and they explained it to you and I will explain it again. At that time, I was unsure if I did sign it or my brother-in-law signed it, but I will take full responsibility. I have and always will. I cannot change or – change the past. If I did sign it or my brother-in-law sign it – but I’m – I’m sorry – I’m sorry, but I’m here to take – take – I’m remorse and I’m here to take full responsibility.
And what is brother-in-law’s name who signed – or may have signed that card?---Steven Akuvale.
…
And whatever the case, you say you had no intention to deceive the Australian Immigration authorities in the filling out of that card; is that right?---What do you mean, sir?
Well did you deliberately mislead the Australian Immigration authorities?---No.
Or was it a mistake?---It was a mistake.
…
And you got on an aeroplane to Australia?---Yes.
And during the course of that flight, somebody filled out a card which said that you had no criminal record; is that right?—Yes.
…
DEPUTY PRESIDENT: Mr Ray, just before you proceed, can I ask a fairly simple but fundamental question that is pertinent to this.
MR RAY: Yes
DEPUTY PRESIDENT: Was the card that was completed with the incorrect information about past convictions the New Zealand outgoing card or the Australian ingoing card?
MR RAY: It was the incoming passenger card.
DEPUTY PRESIDENT: And if it was an Australian incoming passenger card, it would not have been available, presumably, at Auckland Airport. It would have been its normal practice of being distributed on the aeroplane prior to entry into Australian airspace.
MR RAY: But – that’s my understanding from my experience, but I don’t have any ---
DEPUTY PRESIDENT: Because – the – the relevance of this is this. It cannot have been the case that the applicant’s brother-in-law completed the card because he wasn’t on the aeroplane with him. Is that correct? In other words – in other words – I have the transcript of evidence at page 901, and I’m just trying to get clarification. If the applicant is saying that he was – he was in a rush, brother-in-law assisted him and completed the card, that is not the card that you have been asking questions about, is it?
MR RAY: Yes, perhaps I can just ask him that question whether his brother-in-law was on –
DEPUTY PRESIDENT: I think that would be a good question to ask.
MR RAY: Yes. VKTT, was your brother-in-law on the plane with you from Auckland to Sydney?---No.”
It is patently obvious that the Applicant’s brother-in-law did not complete the Incoming Passenger Card. If he completed any document it was the Outgoing New Zealand Passenger Card.
The Applicant, has, prima facie, concocted a story to try and avoid the consequences of his wilful evasion of the truth. Whilst the Applicant, correctly, testified that he took full responsibility for his actions, it does not derogate from the fact that he has given untruthful testimony to this Tribunal on two occasions.
The Tribunal views the Applicant’s false statement on his Incoming Passenger Card, as well as his subsequent attempts to evade responsibility for the false statement, as a serious matter which weighs against the Applicant.
Cl 13.1.1(1)(h) – reoffending after provision of warning
This subparagraph focuses on whether the non-citizen has reoffended since being formally warned, or otherwise being made aware, in writing, about the consequences of further offending.
It is not contested that the Department of Immigration and Citizenship sent to the Applicant, by registered mail, a notification letter dated 22 April 2013. That letter, in turn, referred to an earlier letter dated 2 May 2012 which has been referred to earlier. The letter of 2 May 2012 enclosed a Notice of Intention to Consider Cancellation of the Applicant’s visa. The Department again formally notified the Applicant in the letter of 22 April 2013 of the intention to consider cancellation of his visa, and, in addition, also enclosed all previous correspondence. Further, the letter also referred to the character test – Exhibit 1 AB1 pp. 232 – 233.
As previously noted, on 21 June 2013 a letter was sent to the Applicant informing him that a Delegate of the Minister for Immigration and Citizenship had determined not to cancel his visa on character grounds, but that this did not mean that cancellation of his visa would be considered again in the event of further criminal offending – Exhibit 1 AB1 pp. 61 – 62.
It is also not contested that the Applicant received these letters and was aware of the written warning contained in the letter of 21 June 2013. The following evidence was given at the Hearing of 18 December 2017 – Exhibit 1 AB21 p. 982:
“[VKTT], on 21 June 2013, the Department informed you that it had made a decision not to cancel your visa, but it warned you that any further criminal offending may result in the cancellation of your visa. Do you recall this?---Yes.
You understood that if you continued to criminally offend or engage in other serious conduct, your visa could have been cancelled by the Minister, correct?---Yes.
And yet,[VKTT], after the Minister explicitly warned you about the effect of further criminal offending on your visa status, you continued to offend, didn’t you?---Yes.
In fact, not only did you continue to offend but your criminal offending escalated so much so that between 7 July 2014 and 11 February 2016, you appeared before an Australian court on at least four separate occasions, didn’t you---Yes.
Your most serious criminal offences are also your most criminal offences, correct?---Yes.”
The legal representatives of the Applicant while, correctly, conceding that the Applicant was notified in writing and subsequently committed offences, invites the Tribunal to take into consideration that the “consumption of alcohol, lack of money, and feelings of distress, desperation, loneliness and/or depression were relevant factors in their commission” – ASS pp. 18 – 19.
Whilst the Tribunal does not discount the fact that some, or perhaps all, of the matters outlined by the legal representatives of the Applicant may have been present, it does not derogate from the fact that the Applicant received written warnings, read and understood the nature of the warnings, and yet went on to commit the most serious of his criminal offences in Australia. Whatever his personal circumstances, the undisputed evidence before the Tribunal suggests that the Applicant wantonly ignored the written warnings he received and this also weighs against him.
Cl 13.1.1(1)(i) – Crimes committed while in immigration detention or escaping from detention
No evidence has been presented to the Tribunal that the Applicant has committed any crimes whilst in immigration detention.
Conclusion
In summary, the following conclusions can be drawn from the evidence before the Tribunal:
(a)the Applicant’s offending in both New Zealand and Australia has included the infliction of physical harm, or the threat of inflicting physical harm, on other persons. In the case of the Applicant’s offending in Australia, his actions in deliberately driving a motor vehicle towards a man fleeing from him in fear and running him down is particularly serious;
(b)there is a history in both New Zealand and Australia of the Applicant resisting and assaulting Police officers in the performance of their duties. In the case of the incident involving Police officers in Brisbane, the Applicant’s actions were dangerous and potentially life threatening. The fact that the Police officers involved had to use a Taser weapon multiple times to immobilise the Applicant to prevent him from possibly assaulting them is a very serious matter;
(c)the Applicant has been sentenced to terms of imprisonment in both New Zealand and Australia. In New Zealand, this culminated in the Applicant being sentenced to three years imprisonment for the offence of aggravated robbery. In the instance of the Applicant’s Australian criminal history, it culminated in a custodial sentence of 12 months;
(d)the Applicant’s criminal history in both New Zealand and Australia is concerning because of the frequency of the offences. The Applicant has been convicted of 46 criminal offences in New Zealand and 16 in Australia. Further, there is a distinct trend in Australia of the Applicant’s offences becoming increasingly serious with the passage of time;
(e)the Tribunal agrees with the submission of the Respondent (RSFIC at para 32(e)) that the cumulative effect of the Applicant’s offending shows over a lengthy period a disregard for the law, with the attendant burden on Australia’s judicial system;
(f)the Applicant failed to disclose his New Zealand criminal history on his Incoming Passenger Card, and his attempt to blame his brother-in-law for the error is without foundation; and
(g)despite receiving written warnings from the Department of Immigration and Citizenship of the consequences of further offending, the Applicant went on not only to reoffend but to commit the most serious of his criminal offences in Australia.
Mr Croker also dealt with the help the Applicant gave to his elderly neighbours – Exhibit 2 p. 115:
“Since arriving in Australia he has adapted to Australian life well. I’ve personally witnessed this when [VKTT] would mow his elderly neighbours lawn every week and take them grocery shopping as they could no longer drive.”
Mr Croker gave evidence on 14 November 2019 (Tr. 14.11.2019 pp. 187 – 194) and confirmed the above information.
The Tribunal has also received into evidence statements from a number of other people who have attested to the generosity of spirit of the Applicant and how he has helped them financially, spiritually and in a practical sense. In some cases the assistance of the Applicant has been life changing. One example of this is the statement of Mr Makelesi Uluave of 6 June 2019 – Exhibit 2 p. 111:
“I have known [VKTT] for over fifteen years. We met through church and family. Over the years I have [VKTT] he has helped me out a lot also took me in when I had nowhere to live. [VKTT] is a very hardworking family and church oriented man…He has always been the glue that holds their family together and they have always been able to rely on him to help out in times of need.”
Ms Loketi testified (Tr. 13.11.2019 pp. 168 – 169) that the Applicant assisted as a volunteer for a homeless persons charity for six months:
“So he gave out some food and blankets that he had bought, and just helped…he was just volunteering, there were other people as well…And we were just giving out blankets and food and canned food to people who are on the streets.”
The Tribunal also received evidence of the Applicant’s participation with various sporting clubs and the positive role that he played. Particular emphasis was given to his participation with the Carina Leagues Club – Exhibit 2 pp. 21 – 30.
The Tribunal was presented, then, with evidence that the Applicant has been a hardworking man who has been generous with his family and friends, helped neighbours and those in need and been actively involved in sporting and other endeavours. In short, the evidence presented, supports the proposition that the Applicant has, absent his criminality, contributed positively to the Australian community.
Accordingly, when considering cl. 14.2(1)(a) the Tribunal concludes that the Applicant did not start offending until three years after he arrived in Australia and, overall, has contributed positively to the Australian community for the reasons outlined above.
Attention must now be given to cl. 14.2(1)(b), namely the strength, duration and nature of any family or social links with the specified persons and the effect of non-revocation on the Applicant’s immediate family.
As previously discussed, the Applicant is the father of two adult children and one child under the age of 18 (M). The Applicant is also the grandfather of two young girls, and is a father figure to a child of his ex-partner LH.
The Applicant’s mother and all of his siblings live in Australia. The Applicant has three brothers and three sisters, and they live in either Sydney, Melbourne or Perth – Exhibit 2 p. 98. The Applicant claims that he has no family members living in New Zealand.
The Applicant has a close and loving relationship with his mother and with his siblings. Ms Atu Helu, one of the Applicant’s sisters, made this statement – Exhibit 2 p. 98:
“We, as a family, who are all extremely close…
We believe that [VKTT] is a great person…
We, [VKTT’s] siblings, along with his mother, miss him a great deal, we love [VKTT] and we pray and hope that he is reunited with us all very soon…”
Each of the Applicant’s siblings who gave evidence, has stated and testified, that they are prepared to support him in any way possible should he be released back into the Australian community. That support includes accommodation, money, food and assistance in finding employment. As Ms Helu said – Exhibit 2 p. 99:
“[VKTT] has an extremely strong community support network, and we will all assist him, financially, emotionally and in any other way that he needs.”
Apart from the Applicant’s immediate family, the Tribunal has received evidence from a number of his friends who have stated and testified that they will assist him in finding employment and more generally if he remains in Australia.
The Tribunal also received testimony from Mr Movric who said that the Congregation of the Jehovah’s Witnesses would be willing to help the Applicant in finding employment and more generally if he was to remain in Australia and was a member of that Christian denomination – Tr. 14.11.2019 p. 186.
The Applicant testified that he had received employment and accommodation offers from Sydney, Melbourne, Brisbane and Adelaide by members of his family –
Tr. 12.11.2019 p. 11.
In these circumstances, the Respondent concedes (RCS para 51) that the Applicant has strong family and social links in Australia of a long duration.
The Respondent also concedes (RCS para 52) that the Applicant does not appear to have any significant family or social links in New Zealand, and his children, in the past, at least, were dependent on him emotionally and financially.
The evidence presented supports a finding that the Applicant has strong and durable family and social links in Australia. Both the family and social links support the finding that the Applicant has a strong network of support, and if he were to remain in Australia he would receive considerable assistance in finding employment and in all aspects of his social life.
Turning now to the effect of the Applicant’s removal from Australia on members of his immediate family, consideration will be given to the impact on his three biological children, his two grandchildren, his mother and A, the child of his previous partner,
LH.
The Applicant’s adult son, NS, testified that he had “a pretty good relationship” with his father and that it “has got better” since he has been in immigration detention. NS testified that he spoke once a week with the Applicant and (Tr. 12.11.2019 p. 53):
“… we’ve just planned for him to move with me and my partner, just have a couple of months off just to relax and ease back into life, and then he will be getting back into work.”
NS also testified that he had a positive relationship with his father when he was a teenager – Tr. 12.11.2019 p. 55:
“And in that time, that most recent time that you lived with him between the ages of 15 and about 17, what kind of father was he to you?---He was good. He always made sure I was going to school, doing what I should do. He always made sure I was doing extra sports, staying healthy, and always making me work. I didn’t have to pay rent, he just told me to give the money to my mum instead of paying him, yes, he has always kept me positive and going.”
Ms Ebony Dobson, NS’s partner of five years, provided a statement in which she outlined the impact of the Applicant’s detention on her partner and the wider family. In her statement, NS is referred to as “Taniora” – Exhibit 2 pp. 109 – 110:
“Some major and minor events that have come and gone through those years are times like when Taniora and myself graduated high school together and the formalities that follow that, a moment to be shared with close family and loved ones but unfortunately that was not possible for [VKTT] to share with us.
Another example being Taniora’s 18th birthday, this being one of the most important because it is one where a boy becomes a man and unfortunately [VKTT] was not able to be there when it was his sons turn to enter adulthood. Another example similar to the last being….[when] Taniora turned 21 and family from as far as New Zealand & Perth all came together to celebrate this important event in Taniora’s life but [VKTT] was still only able to be there in our hearts for obvious reasons. There have been countless other moments such as Taniora’s first full time job, my 18th and 21st, Taniora landing an apprenticeship that he will be completing in January 2020, Taniora and myself moving into our first home together on the same street he grew up on with his dad and sister, and so many more. We just hope and pray that [VKTT] will be able to attend our wedding some day, and be there to help raise his grandchildren should we ever have the pleasure.
[NS] is my whole heart and soul and I know it would mean beyond words to him and myself to be able to have his Dad back in our lives and have him be able to present at the few other extremely important events we have left.”
Ms Dobson also testified and informed the Tribunal that the Applicant could stay with her and NS if he was released from detention. She also made the following observations about the relationship between NS and the Applicant – Tr. 12.11.2019 p. 50:
“Pretty straightforward father-son relationship. And a very good one. No, yes, no dramas. No bad blood at all between them. Just a loving father-son relationship. Very supportive.”
In an undated statement, but one most probably prepared in 2016, NS made these observations about the Applicant – Exhibit 1 AB1 p. 103:
“My father is a good, genuine, family man and he belongs here with the family who cares about him most and whom he cares about most. To lose him it would greatly impact not only on my life but also those around me as well and the many people who care about him and his wellbeing.”
The Tribunal finds that the relationship between NS and the Applicant was a strong and positive one, and the effect of the Applicant being returned to New Zealand would be negative in that NS would be deprived of the love, support and guidance of his father.
The Applicant’s adult daughter, CS, did not give evidence at the Hearing, however she did testify at the first Tribunal Hearing in 2017. That evidence has been set out earlier. Clearly she and the Applicant have had, at times, a turbulent relationship, but hearing the Applicant giving testimony about CS and reading her testimony at the first Hearing, it is tolerably clear that they have a close and very loving relationship.
CS’s brother testified that the Applicant has “a really strong relationship with my sister [CS]” – Tr. 12.11.2019 p. 54.
In her statement of 15 June 2016, CS made the following observations about her relationship with her father – Exhibit 1 T2 p. 101:
“Although he and my mother separated when I was 3 years old, he has always made a great effort to be apart of my life and helped raise me to the best of his knowledge and ability. He has taught me to always work hard and to never rely on anyone else & to strive for the best. I have always known that he has loved me unconditionally for that I will be forever grateful. My father truly means so much to me and there are no words to describe the gratitude I have for his hard work and sacrifice.”
Again, the Applicant’s return to New Zealand will have a negative impact on
CS as she loves her father and wants him to remain in her life and that of her two children. The evidence also discloses that CS suffers from depression, and the removal of her father to New Zealand will in all likelihood have a negative impact on her underlying condition.
The Applicant’s relationship with his young daughter M has been discussed earlier. The Tribunal received evidence of the close bond of love between M and the Applicant not only from M’s mother, LH, but numerous other witnesses, including family and friends. The Applicant own testimony about his love of M was very moving, and it is clear that the Applicant is deeply distressed by his inability to interact with his daughter and be present as she grows into adulthood.
LH also testified about the negative impact that separation from her father was having on M, and of the possible negative ramifications it will have in the future. Again, this testimony has been set out earlier in this decision.
The Tribunal finds, based on the uncontested evidence presented, that the Applicant’s removal to New Zealand will have an ongoing negative impact on M.
As also discussed earlier, LH’s child A, has been diagnosed with autism, has a special bond with the Applicant. Although not his biological father, the Applicant has, in the past, had a significant positive impact on him, and played a parental role. Based on the uncontested testimony of LH, the Tribunal also finds that the removal of the Applicant to New Zealand will have a negative impact on this child.
The Tribunal was also presented with evidence of the close bonds that the Applicant has with granddaughter K1.
CS in her statement of 15 June 2016 addressed the special bond the Applicant had with his grandchildren – Exhibit 1 AB1 p. 101:
“Since my daughters birth, the bond he has created with the two of them is unique and I appreciate that my dad is an active grand father in my daughters life. When he is home he plays the ‘Man’ of the house role kind of like another father figure to my daughters. He has always made us feel protected, love & always there to support myself and my daughters.”
NS’s statement also contains the following observations about the bonds between the Applicant and his grandchildren – Exhibit 2 p. 103:
“My two nieces K1 and K2 have missed out on having their grandfather for 4 years. K1 (5 years old) was able to spend just under a year with him when she was born and I have never seen a stronger bond. She was his world and he was hers, Dad would take her wherever he could, shopping, parks, daycare etc. K1 has always asked about him ever since although she doesn’t remember the bond they had she still see’s photo albums around the house and wants him in her and her little sisters lives. She notices him most in photos because she has his eyes and his smile. K2 her younger sister was only a newborn when Dad was taken away so she has never had the proper time with him that they both deserve.”
At the Hearing, NS said of the bond between K1 and the Applicant that it “was something else”, that he “ha[dn’t] seen him that way with anyone” and that the relationship with K1 “really softened him up”. He also testified that when the Applicant went away K1 asked ““Where’s Poppa’ and yes, she still remembers him”” – Tr. 12.11.2019 p. 54.
This evidence is consistent with the evidence given by other family members and friends.
The Tribunal finds that the Applicant’s removal to New Zealand will have a negative impact on K1. As K2 was too young to remember the Applicant, and there is no evidence of the impact of his separation from her, the Tribunal makes no findings about the impact of the Applicant’s removal to New Zealand on this child.
Attention must now be given to the effect of the Applicant’s removal to New Zealand on his mother.
The Applicant’s mother, AS, is 70 years old and has been in bad health for some time. On 2 September 2019, she was admitted to the Prince of Wales Hospital, Sydney, after she was found unconscious on the floor of her home under the dining table. She was discharged from the Hospital on 20 September 2019 – Exhibit 2 p. 121. Ms AS testified that she had suffered a heart attack – Tr. 13.11.2019 p. 111.
A number of members of the Applicant’s family have stated and testified that the strain placed on Ms AS by the detention and possible deportation of the Applicant has had an appreciable and deleterious impact on her health.
Ms Loketi, for example, made the following statement – Exhibit 2 p. 96:
“His mother who recently had some health issues and is slowly deteriorating because of the stress of thinking about her son moving back to NZ….”
Ms Atu Helu, one of the Applicant’s sisters, in her most recent statement made the following claims – Exhibit 2 p. 98:
“We as a family, have all helped out with [VKTT’s] huge legal costs to fight his deportation, and this has led to our mother, [AS], suffering with anxiety and stress. Our mother became very ill due to [VKTT’s] detention, and the thought of [VKTT] being deported to New Zealand, this has led our mother, spending considerable time in hospital. Our mother, now, requires assistance with all the normal day-to-day activities. Our mother is now dependent on her children.”
The uncontested evidence before the Tribunal is that the deportation of the Applicant to New Zealand will have a negative impact on the health of AS.
In conclusion, the evidence supports a finding that the removal of the Applicant from Australia will have a negative impact on the members of his immediate family, with particularly serious ramifications for his mother and also both of his daughters.
The Tribunal therefore finds that the strength, nature and duration of the Applicant’s ties to Australia as explained by cl. 14.2(1) weigh in favour of the Applicant.
Impact on Australian business interests
No evidence was presented on this consideration. The Tribunal agrees with the submission of the Respondent (RSFIC para 79) that there is no evidence that the Applicant has been involved in the delivery of a major project or delivery of an important service in Australia. Therefore an assessment of this consideration is not necessary.
Impact on victims
No evidence was presented, nor submissions received, on this consideration.
Extent of impediments if removed
Subparagraph 14.5(1) of the Direction provides that a decision-maker must take into account the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand) taking into account:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in New Zealand.
The legal representatives of the Applicant made the following submissions – ASS pp. 24 – 25:
“While there are no impediments, it is to be remembered that it is possible and likely that the Applicant may be injured or worse if he is returned to New Zealand, where he has no family support. It is also to be remembered that the Applicant is currently aged 39 years, has no or no close ties with New Zealand, and suffers from health problems (numbness to the left side of his face) for which he is seeking medical treatment, and PTSD. [T 30]
Cases such as Dawou v MIBP 2016/3006 and Gundesan v MIBP 2016/1208 WSML and Minister for Home Affairs (Migration) [2019] AATA 41 demonstrate that the AAT has revoked Cancellations in Applicants in far more serious cases. It is submitted the AAT set aside the decision and substituted a new decision to not cancel the visa. The evidence contained in the court book and evidence given before Deputy President Soso [sic] supports the above submissions.”
The Tribunal has already dealt with the issue of the likelihood of the Applicant being subject of any real harm should he return to New Zealand. The Tribunal has found that the evidence presented does not support the Applicant’s submission that it is likely that he may be injured or worse by gang members if he is returned to New Zealand. Instead, the evidence supports the finding that there is only a small risk of the Applicant suffering harm if he is returned to New Zealand, and that risk would be further minimised if he does not reside in South Auckland and does not recommence associating with members of criminal gangs. Further, the Applicant can seek the protection of the New Zealand Police should he feel threatened.
The Applicant is now 39 years of age, and despite some underlying psychological problems and numbness in his face, he is a man in relatively good health. Indeed, based on his desire to return the workforce and be involved in community activities, it would appear that he is a fit, strong man and is still relatively young.
There are no substantial language or cultural barriers impacting on the Applicant’s return to New Zealand. The Applicant lived in New Zealand for the first 26 years of his life. He speaks perfect English and is culturally assimilated into both New Zealand and Australian societies. In short, there are no linguistic or cultural barriers that would impede his reintegration into New Zealand society.
Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems – see Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301.
It is the case that all members of the Applicant’s immediate family reside in Australia. All of his children, grandchildren, siblings, mother and most of his nephews and nieces live in Australia. There is little evidence before the Tribunal of whether the Applicant has any cousins or uncles or aunts still in New Zealand, but the evidence would suggest that he has very few relatives residing there.
The Tribunal accepts that absent any immediate family, the Applicant will not find it easy in the short term to reintegrate into New Zealand society. He will lack the strong and loving network of support his family and friends would offer him in Australia.
However, as previously noted, New Zealand has a strong social welfare system, and there would be many avenues where the Applicant could obtain support. Further, New Zealand has a strong and vibrant Tongan community, and the Applicant would, no doubt, be able to seek the assistance of members of that community.
The Applicant’s strong work ethic also stands him in good stead. There is no reason to doubt that he would easily find employment, and having the outgoing and somewhat charismatic personality that he has, in quickly gaining friends and comrades.
The only real long term impediment that the Applicant faces in New Zealand is one of his own making. If he again consorts with criminal gang elements, and without the guidance of his immediate family, he could once again enter into a life of crime with possible life-threatening consequences. In short, if the Applicant lives a law-abiding life in New Zealand there are few, if any, long term impediments to his reintegration into New Zealand society.
The Tribunal agrees with the Respondent (RCS para 57) that this consideration should be given neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. The Applicant does not pass the character test and having regard to the evidence presented, there is not another reason to revoke the cancellation decision.
In considering whether there is another reason to exercise the discretion afforded by
s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations prescribed in the Direction.
The Tribunal makes the following findings:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B weighs heavily in favour of revocation;
(c)Primary Consideration C weighs heavily in favour of non-revocation
(d)Other Considerations – International non-refoulement obligations is of neutral weight;
(e)Other Considerations – Strength, nature and duration of ties weighs in favour of revocation;
(f)Other Considerations - Impact on Australian business interests is not relevant;
(g)Other Considerations - Impact on victims – is not relevant as no evidence was submitted; and
(h)Other Considerations – Extent of impediments if removed is of neutral weight.
Summary
In this matter the Tribunal has had to assess the negative impacts that non-revocation will have on the Applicant’s family with the risk that revocation poses to the Australian community should the Applicant revert to his past criminal conduct.
The Tribunal has carefully assessed the evidence and given due attention to how the various considerations should be weighed individually and then cumulatively. This has not been an easy exercise, and the Tribunal acknowledges that the decision reached carries with it some undoubted hurt and harm for some members of the Applicant’s family.
However, the risk that the Applicant poses to the Australian community far outweighs any family considerations. The Applicant has a long history of offending in Australia and New Zealand. He has a history of committing violent crimes.
The Applicant has demonstrated throughout his life a good work ethic and has been, at times, a caring parent, a loving son and a good friend. Despite his upbringing, he has been, generally, a good role model for those he has befriended.
It is regrettable to conclude that the good deeds the Applicant has performed, and all of the decency he has shown to his family, friends and those in need, fall away when he mixes with bad company and alcohol and drugs change his personality. It seems that the Applicant is a weak man and when he falls into bad company his persona changes. This transformation is complete if he uses alcohol, but more particularly drugs. His methamphetamine induced criminal spree in 2014 – 2015 was the culmination of his associating with criminal elements and using illegal drugs.
The Tribunal cannot be assured that this will not happen again. It has been, unfortunately, part of pattern of behaviour over a long period. Certainly the Applicant has made an effort to rehabilitate himself, and in the controlled environment of an immigration detention centre, his transformation seems assured. However, once he returns to the community and the constraints imposed by detention are removed, there can be no guarantees that he will not revert to his previous ways. It is a real risk and not an insubstantial one.
The safety of the Australian community is of paramount concern and is the bedrock issue in applying the Direction properly. This is particularly the case if the risk posed to the community is one of the commission of violent crime.
DECISION
In these circumstances, the Tribunal will not exercise the discretion to revoke the cancellation of the Applicant’s visa.
I certify that the preceding 445 (four hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.............................[SGD]...........................................
Associate
Dated: 20 March 2020
Dates of hearing: 12, 13 and 14 November 2019 Date final submissions received: 20 January 2020 Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Ms Z Burrows Solicitors for the Respondent: Mr A Ray
Clayton Utz
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