Hemana and Minister for Immigration and Multcultural Affairs [1999] AATA 99 (15 February 1999)

Last Updated: 23 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 99

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/72

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID IAN HEMANA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Dr P Gerber, Deputy President

Date 15 February 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

......(Signed)................................

DEPUTY PRESIDENT

CATCHWORDS

Immigration - deportation - New Zealand citizen - refusal of substantive visa on grounds applicant not of good character - no merits review of decision sought - subsequent application for bridging visa - refusal on grounds applicant not of good character - applicant's failure to meet requirements of reg 050.221 of Migration Regulations for bridging visa- Migration Act 1958 s 501.

REASONS FOR DECISION

15 February 1999 Deputy President Dr P Gerber

1. This is an application by David Ian Hemana ("the Applicant), a citizen of New Zealand to review the Minister's refusal to grant him a bridging E visa - subclass 050.

2. The applicant arrived in this country on 2 October 1998 from New Zealand. On his Incoming Passenger Card, he ticked "No" in the box asking: "Do you have any criminal convictions?" (after first ticking "yes" and then indicating to the immigration officer that this was ticked in error). In fact, the applicant has a long list of criminal convictions in New Zealand, going back to 1986, ranging from stealing, assaulting police, assaulting prison officers, common assault and "threatens to kill//do GBH (verbally)", to name but a few. He was convicted of the last-mentioned offence on 4 August 1998 and sentenced to 5 months imprisonment. In other words, he could only have been released a few days before arriving in Australia. Being a New Zealand citizen and claiming to have no criminal convictions, the applicant was granted a visa class TY 444 on arrival.

3. Leaving aside the fact that he misled the immigration authorities about his criminal record in New Zealand, his conduct in this country has given no indication that his aggressive behaviour has been modified. On 22 October 1998, whilst in Brisbane, he assaulted an innocent passenger on a bus by punching him in the face, requiring the victim to seek hospital treatment. When the applicant was arrested and charged with assault and causing bodily harm, he was uncooperative in the extreme, and on being searched, was found to be in possession of a dangerous drug (cannabis). When he was taken to the watchhouse, he used obscene language and became so abusive that he had to be physically restrained and handcuffed. Since he refused to provide any contact details or give his address, he was remanded in custody and detained at the Arthur Gorrie Correctional Centre awaiting an appearance in the Brisbane Magistrates Court on 7 December 1998 on charges arising out of the aforementioned conduct.

4. Meanwhile, the Minister, having discovered the applicant's criminal history, wrote to him on 6 November 1998, setting out his lengthy criminal history in New Zealand and pointing out that he was remanded in custody on 23 October 1998 to appear in the Brisbane Magistrates Court for a committal hearing "regarding charges of assault occasioning bodily harm, possess dangerous drug and obstruct police". (The three charges referred to above have not been not proceeded with). The notice went on to point out that as a result, his visa may be liable to be cancelled pursuant to s 501 of the Migration Act 1958 ("the Act"), noting that the policy guidelines provide that a visa may be cancelled having regard to the person's past criminal conduct and/or if the Minister is satisfied, inter alia, that if the person were allowed to remain in Australia, he or she would be likely to engage in criminal conduct. The notice went on to state:

"This notice gives you the opportunity to:

comment on the evidence and ground(s) for cancellation of your visa under Section 501 of the Act.

comment on whether discretionary cancellation should occur if you are found to fall within one or more of the grounds under Section 501 of the Act.

You should provide written response to this notice ... within seven days, ie by close of business on 20 November 1998."

5. The applicant responded to this notice on 10 November 1998 as follows:

"To whom it may concern

I David Hemana, responding about your letter. I know I was in the wrong. But no one is perfect. I just got over here. I got family here and there's a job waiting for me when I get out. The reason why I moved from New Zealand to start a new life for me. If I go back there then I've gone back to square one. I am going to get help for my drinking. Most of my record has done under the influence alcohol. Wouldn't been in here if I didn't drink that night. So all I can say, give me another chance. I promise you, you won't hear from me again.

Yours sincerely

(sgd) David Hemana"

6. The Department responded to this letter, seeking details of the applicant's family in Australia and New Zealand, the identity of the prospective employer and in what capacity the applicant would be employed.

7. This letter failed to produce a response from the applicant. In the result, the Department wrote to him on 24 November 1998, advising him that "the Department has found on the grounds of your past criminal conduct that you are not of good character under Section 501 of the Migration Act. Your visa was therefore cancelled on 24/11/98. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the grounds for cancellation."

8. The applicant failed to seek a review of that decision and has been in immigration detention ever since.

9. On 6 January 1999, the applicant lodged an application for a bridging visa E - subclass 050. This was refused on 8 January 1999, the delegate being of the view that the applicant was not of good character under section 501 of the Act, a view amply borne out by subsequent events - on 11 January 1999, ie some weeks before this hearing, he assaulted another prisoner.

10. At the hearing, the applicant was assisted by his sister-in-law, Arona Wahrai, and his sister Donna Wahrai. Both were anxious for the applicant to remain in Australia, as indeed was the applicant.

11. Government policy requires that a person entering Australia must be of good character. By no stretch of the imagination can the applicant be seen to meet that requirement. He has a long history of offences in New Zealand, some serious, and no sooner did he arrive in Australia, then he engaged in one serious assault against a member of the public and another against an inmate whilst in immigration detention. It was said that the family in Brisbane would be able to exercise a restraining influence on the applicant, ensuring that he would not engage in further criminal conduct. The evidence has not persuaded me that his relatives will be able to "tame" this man's aggressive behaviour. I note that when he first arrived in Brisbane, he stayed in a hostel providing temporary accommodation rather then with his family, and that it did not take him long to gain access to illicit drugs.

12. In any event, there is a further - and fatal - impediment to granting this man a bridging E visa, subclass 050. Such a visa is granted for a limited purpose only and intended to provide permission to remain temporarily in Australia to an unlawful non-citizen who is an eligible non-citizen for the purpose, inter alia, for that person to make satisfactory arrangements to depart from Australia, or else to pursue merits review of the decision to cancel his or her substantive visa; see reg 050.221 of the Migration Regulations. In the instant case, the applicant did not appeal the cancellation of his substantive visa and has every intention of staying in Australia. Thus it could be said that the applicant is seeking to use a bridging visa as a device to overcome his failure to pursue merits review of the decision to cancel the substantive visa. A bridging visa is not intended for that purpose; it cannot exist in its own right, unattached to one of the conditions contained in the regulations. In other words, the delegate was in error in considering the application for a bridging visa on the grounds advanced in support of it, ie rejecting it on the grounds that the applicant was not of good character under s 501 of the Act. Instead, he should simply have pointed out that no grounds for the application had been made out. .

13. For the reasons advanced above, the decision under review is affirmed.

I certify that this and the 4 preceding pages are a true copy of the decision and reasons for decision herein of

Deputy President Dr. P. Gerber.

Signed: .....................................................................................

B. Hitchcock, Secretary

Date/s of Hearing 15 February 1999

Date of Decision 15 February 1999

Applicant Mr Hemana, himself

Counsel for the Respondent Ms. J. Carrington, advocate