Eriha and Minister for Immigration and Citizenship [2009] AATA 599 (14 August 2009)

Last Updated: 14 August 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 599

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2298

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TODDY MATANA MEREHANA ERIHA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 14 August 2009

Place Parramatta

Decision

The decision under review is set aside.

..................[sgd].........................
M D Allen
Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP: Cancellation of Applicant's visa on the basis that he did not meet the character test - sentenced to term of imprisonment for violent assault with a beer glass - application of the considerations in Direction 41 - first offence with good prospects for rehabilitation - exercise of discretion in Applicant's favour

LEGISLATION

Migration Act (1958): s 501

REASONS FOR DECISION

Senior Member M D Allen

1. On the 13th day of May 2008, the Applicant pleaded guilty in the District Court at Penrith to one count of malicious wounding and was sentenced to imprisonment for 3 years with a 1 year non-parole period.
2. As a result of that conviction and sentence the Respondent, pursuant to subsectin 501(2) of the Migration Act (1958) (“the MA”), cancelled the Applicant’s visa permitting him in reside to Australia on the grounds that the Applicant did not pass the character test.
3. In these proceedings the Applicant, whilst conceding that he does not meet the character test as defined in subsection 501(6) of the MA argued that the discretion in subsection 501(2) of the MA not to cancel a visa should be exercised in his favour.
4. The exercise of any discretion not to cancel a visa must be exercised having regard to any Directions made by the Respondent pursuant to section 499 of the MA. In this matter, at the time the Applicant’s visa was cancelled, Direction 21 was in force and was applied by the Minister’s delegate. On 3 June 2009, the Respondent signed a new Direction, Direction No 41, which came into force on 15 June 2009. These proceedings therefore applied the criteria set forth in Direction 41 which is more favourable to criminals who seek to remain in Australia.
5. As stated, the Applicant did not dispute that he failed the character test. The nature of his offence can be gauged by the Statement of Agreed Facts signed by the Applicant and tendered by the prosecution following his plea of guilty. This document also forms part of Exhibit R2 in these proceedings. The statement reads, inter alia:

“2. At about 1am on the 9th February the offender and several friends were playing pool in the hotel when they became involved in a verbal altercation with other men at an adjoining table. Hotel security officers moved the offender and two of his friends from the pool area into the beer garden outside.
3. In the beer garden the offender and his friend Rory-James Haronga began remonstrating with several security officers. CCTV footage in that area shows the offender and Haronga jostling with the security officers before Haronga throws a punch at one of the officers. The offender was pushed and fell to the ground...
5. Immediately afterwards, CCTV footage in the walkway (“Camera 7”) shows Haronga, the third unknown friend and at least one other male brawling with the security officers on the walkway...
6. As the brawl is occurring the offender is seen on the footage to move through the brawl alongside the walkway wall and strike the victim Khatab from behind with a beer glass to the right side of the face around the area of the eye. The victim sustained a significant wound to the outside of his right eye and the area of his right cheek. (See CCTV footage; “camera 7”)
7. Immediately after striking the victim the same footage shows the offender, Haronga and one other male advancing on the security staff on several occasions in a threatening manner. Haronga is armed with a stick...
9. The offender was described as “well intoxicated” when he came into police custody.”

6. The assault had serious repercussions for the victim. Exhibit R3 in these proceedings is a statement by the victim of the assault and it is clear from that statement, as well as medical evidence before the District Court, that the victim was severely injured both physiologically and psychologically.

EXERCISING THE DISCRETION

7. In exercising the discretion not to cancel to the Applicant’s visa I am bound by Direction 41. That Direction states as its objective:

“(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

8. Further general guidance is given in paragraph 5.2(2) of Direction 41, namely:

“In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:
(a) The nature of any harm that the person may cause to the Australian community; and
(b) The risk of that harm occurring.”

9. Direction 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa the decision maker shall take into account 4 primary considerations and 7 other considerations.
10. The first primary consideration refers to the protection of the Australian community, especially from crimes involving violence.
11. The Applicant’s offence did involve violence of a type that most members of the Australian community would find abhorrent. His victim, who was not known to him, was attacked from behind and a glass was used to inflict injury.
12. Notwithstanding the seriousness of the offence, the sentencing remarks of Hughes DCJ are relevant. His Honour said inter alia:

“ The offender is a youngish boy; he will be twenty-years old tomorrow. Other than this event, he is of excellent character. He is a keen sportsman and plays professionally in grade rugby league...He has had a generally uneventful upbringing and he appeared, in giving evidence, to be a straight forward person who did not embellish the events and indeed, gave evidence such as picking up the glass not to drink out of it. I did accept that he was person for whom this particular action was out of character.
He has certainly shown a degree of remorse for his actions that I accept as genuine. He is just not feeling sorry for himself, but I accept that he is feeling sorry for his victim.
It has been agreed both by the Crown and the defence that a plea of guilty was taken at the earliest opportunity and therefore its utilitarian value to the State and to the other persons having to give evidence is high...I have read the references that were tendered to me by the defence. They do show that the attesters highly regarded the offender. In his life and in his time in New Zealand and his employer and so far as Marina Parkin is concerned, has stated that he was work with them and – but Mr Brad James from Stacks Scopes has said he was an honest, reliable and very capable employee:
“Overall, having known him both through his work and football, I find his actions on the night at Quakers Inn out of character and believe he has learnt by his mistakes.”
He seems to be a very nice young man and a useful member of the community. According to the evidence he gave himself, he has always been in work, mostly of the labouring kind. He is not an academically inclined fellow, but he has not got into trouble at all. According to the agreement between the Crown and the defence, there is absolutely no record at all of any infringement so his subjective features are very strong and, but for the seriousness of the offence...”

His Honour continued to say:

“He is a person of good character. I am satisfied he is unlikely to re-offend and I am satisfied he has got good prospects of rehabilitation. I am satisfied he has shown remorse...”

13. A report by the NSW Probation and Parole service dated 8 December 2008 shows that the Applicant had no incidents of internal charges or disciplinary hearings whilst in prison. Whilst in prison he did not work but undertook educational courses. Apparently he was described by his teacher as dedicated and keen.
14. The Applicant said in evidence that in prison he was scared but that he coped alright. He kept to himself and just wanted to do his time. In his statement he said:

“ I did not know how serious my offence was until I saw the CCTV and the damage I had done to the victim. I wrote a letter to the victim and gave it to my mother to send. I wanted to apologise to him personally through the restorative justice program but I heard whilst in jail that he did not want to meet me.”

15. A dispute exists as to what steps the Applicant has taken to express his remorse to his victim. Evidence was given of a letter the Applicant says he wrote and handed to his mother to be handed to his legal aid solicitor to be sent to the victim. The victim denies, in his statement, ever having heard from the Applicant. Unfortunately this conflict can not be resolved and a reason for that was the statement of the victim was only served on the Applicant’s solicitors on the morning of the hearing. Subsection 500(6)J of the MA then prevented rebuttal evidence being adduced. The Applicant’s mother did, however, give evidence that she handed a letter to the solicitor.
16. I accept the Applicant’s evidence that when he was made aware of it he approached the Restorative Justice Program whilst in Gaol and that he was assessed as suitable for that program. He said that was informed that the victim had been approached by the Restorative Justice Program and had stated that he did not want to take part in it.
17. Clinical psychologist, Mr Taylor, has considerable experience in the psychological assessment of offenders. Following a consultation of 2 hours and psychological testing, he was of the opinion that the Applicant has a low to low moderate risk of recidivism. However, the Applicant does have a borderline predisposition to engage in substance abuse (alcohol) and if so engaged, his judgment would be weakened and he would be likely to engage in short sighted and risk taking behaviour.
18. I found the Applicant’s statement to Mr Taylor regarding the offence to be illustrative of remorse. Mr Taylor reports the Applicant saying to him:

“ I regret what I have done...it was a dumb act...its not me...thats not how I do things...if I wasn’t drunk it wouldn’t have happened...it was pretty much the first fight I’ve ever been in. I’m ashamed of what I’ve done.”

19. Mr Taylor’s opinion was attacked by the Respondent as having been given without a knowledge of all the facts. I am not persuaded that knowledge of the full details of the offending behaviour and the Applicant’s reluctance to acknowledge paternity of a child conceived in a brief relationship detract from the gravaman of Mr Taylor’s report, particularly as that report was formulated after the administration of objective testing.
20. Mr Taylor concluded his report by stating:

“ The results of actuarial analysis indicates that he has a low to low moderate risk of general recidivism and a low moderate risk of violent recidivism. When considering these results along with the history he provided, the results of psychometric tests administered to him, and documents which have been made available I have formed the opinion that he has a low risk of re offending. In reaching this opinion I have also considered steps that he has taken with regard to his rehabilitation while in prison in terms of courses in anger management and drug and alcohol counselling. He has also taken educational courses. He has also said that he has been referred to Restorative Justice so that he can apologise to the victim. He has apparently been very genuine with regard to his remorse and he has shown sensitivity for the effect of his offending behaviour on the victim. Furthermore he is motivated to work and to develop a career in professional rugby league. These factors I believe indicate that he has very good prospects of rehabilitation and give further weight to my opinion that he has a low risk of recidivism...”

21. The Applicant has been resident in Australia on a permanent basis only since 29 July 2006. Apparently he came to join his parents. His parents have now separated and his father and two youngest siblings have returned to New Zealand.
22. As a result of what he claims was a casual relationship the Applicant is the father of a child born 23 September 2007. He has never seen that child and it is only recently as a result of DNA testing that he has been prepared to admit paternity.
23. I find that the only interest of the child that realistically needs to be considered is the amount of child support that can be levied from the Applicant. I agree with submissions on his behalf that if he remains in Australia it is likely that the amount of child support obtained by the Child Support Agency may be more than if he returned to New Zealand.
24. I do not accept the Applicant’s evidence regarding his wish to be involved in the child’s life. To date he has no contact with the mother of his child. In her application to the Federal Magistrates Court for child support she says:

“ I have not seen or heard from Todd (sic) since I told him I was pregnant in around February 2007.”

25. Even after release from prison the Applicant has made no attempt to contact the mother of his child.
26. I am therefore satisfied that the Applicant’s claims to wish to be involved in the child’s upbringing are false and made for the purpose of these proceedings Further, the child himself has had no contact with his father, therefore, any parent child bond would not be ruptured by the cancellation of the Applicant’s visa.
27. Cancellation of the Applicant’s visa would have effect upon members of the Applicant’s immediate family still resident in Australia, particularly his mother. He has two sisters living in Melbourne and two others accompanied his father on the father’s return to New Zealand. The Applicant thus has close family ties in both countries but I accept that his preference is to remain in Australia and help support his mother.
28. As stated above, the Applicant does have immediate family in New Zealand and I find that he could find work in one of the major New Zealand cities. He stated that it would be difficult for him to maintain himself away from his family base in rural New Zealand however I note that he was able to support himself in Brisbane as a seventeen year old when he first tried to make a career in Australian rugby league.
29. There were various references tendered in the Applicant’s favour. Two of the referees gave evidence but I find that their evidence as to the Applicant’s character was diminished as they did not know the full details of the Applicant’s offence. In particular I gained the distinct impression that amongst the rugby league officials that gave references that the most heinous of crimes would be forgiven if the offender was a skilled player.
30. Generally speaking though, there are members of the community who knew the Applicant and consider his offence to be out of character and have regard for him.
31. The cancellation of the Applicant’s visa would have a salutary effect, not only on members of the Applicant’s extended family in Australia, but would also be a warning to others both in Australia and New Zealand that if people who are in Australia on sufferance offend against the criminal law, they will not be permitted to remain.
32. The cancellation of a visa is for the protection of the Australian community, not as an additional punishment. Whilst the offence committed by the Applicant was grave and deserving of condign punishment, it was the Applicant’s first offence.
33. On sentencing, the remarks of Hughes DCJ were generally supportive of the Applicants prospects for rehabilitation. The report of prison authorities show that whilst in custody he had not offended against prison regulations and undertook educational courses. The view of psychologist Mr Taylor was that there was a very low risk of recidivism. As noted there are members of the community who know the Applicant and consider that his offence was out of character.
34. All in all, applying the considerations in Direction 41 applicable to this Applicant, I am of the opinion that the chances of his re-offending are low and that, as a first offender, the discretion not to cancel his visa should be exercised in his favour.
35. The decision under review is set aside.
    

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: .........................[sgd].......................................................

M. Corcoran, Associate

Date/s of Hearing 23 & 24 July 2009

Date of Decision 14 August 2009

Counsel for the Applicant Mr L Carp

Solicitor for the Applicant Legal Aid Commission

Counsel for the Respondent Mr J Mitchell

Solicitor for the Respondent DLA Phillips Fox