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Makasa and Minister for Immigration and Citizenship [2011] AATA 719 (18 October 2011)

Last Updated: 18 October 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/3061

GENERAL ADMINISTRATIVE DIVISION
)

Re
LIKUMBO MAKASA

Applicant
And
MINISTER FOR IMMIGRATION AND
CITIZENSHIP

Respondent

DECISION

Tribunal
Ms G Ettinger, Senior Member and Mr P W Taylor SC, Senior Member

Date 18 October 2011

Place Sydney

Decision
The decision under review is affirmed.

.....................[sgd]....................
Ms G Ettinger
Senior Member

CATCHWORDS

IMMIGRATION – Visa cancellation – substantial criminal record – correct identification of previous convictions – Tribunal to take into account all relevant matters in exercising its power – primary considerations – protection of the Australian community – serious criminal or other harmful conduct – risk of recidivism – unacceptable risk including conduct, not the subject of a conviction – interest of children – other considerations – decision under review affirmed

Migration Act 1958 s 501(2),

Crimes Act 1900 (NSW) s 61J(2)(c), 61J(2)(d), 66C(3),

Criminal Appeal Act 1912 (NSW) s 5(1)(b),

Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649

Minister for Immigration v SRT [1999] FCA 1197; (1999) 91 FCR 234

Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313

Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441

Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 99 ALD 433

R v Storey (1978) 140 CLR 361

Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313

Commissioner for Children and Young People v FZ [2011] NSWCA 111

Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690

Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198

Direction [no. 41] - Visa Refusal and Cancellation under section 501


REASONS FOR DECISION

18 October 2011
Ms G Ettinger, Senior Member and
Mr P W Taylor SC, Senior Member

  1. Mr Makasa is a 28 year old Zambian citizen. He came to Australia on a student visa in November 2001. In October 2004 his mother was granted permanent residence under a spouse visa. At that time he was also granted a permanent residence visa, as one of her dependants.
  2. On 5 July 2011 the Minister for Immigration and Citizenship cancelled Mr Makasa’s visa pursuant to section 501(2) of the Migration Act 1958. Mr Makasa was notified of the decision on 27 July 2011. He commenced these review proceedings on 1 August 2011.

AUGUST 2009 - CONVICTION AND UNDERLYING CHARGES

  1. The Minister’s visa cancellation power arose because of Mr Makasa’s August 2009 conviction, and concurrent 2 year custodial sentences, for three offences of sexual intercourse with a 15 year old girl. Those convictions relate to events that occurred on 31 August 2006 in a rented house Mr Makasa shared. The precise details of those events, and what happened in Mr Makasa’s bedroom during the night of 30 August 2006, are controversial. They have resulted in 4 trials (3 of which were aborted, for various reasons that are presently immaterial), two judgments of the NSW Court of Criminal Appeal, and the contentions that are a significant part of the dispute in the present proceedings.
  2. In many places, including Federal Police Records, the submissions and reasons relating to the visa cancellation decision, Mr Makasa’s three convictions have frequently been referred to as convictions for either aggravated sexual assault or sexual assault. All of these descriptions are wrong.
  3. Mr Makasa was charged with eight principal offences, and eight alternative offences, arising out of the events the young girl complained had occurred. Three of the principal charges were of aggravated sexual assault, under s 61J(2)(c) of the Crimes Act 1900 (NSW). They were joint charges against Mr Makasa and two other men. They involved allegations of a joint enterprise to have non consensual sexual intercourse (vaginal, anal and oral) with the girl, on the evening of 30 August 2006, in Mr Makasa’s bedroom. None of the three jointly charged defendants was specified as the actual perpetrator. But their presence in the room, and knowledge of the circumstances in which the intercourse occurred, was relied on as probative of the joint enterprise. It was also a circumstance of aggravation under the statutory provision. A conviction for aggravated sexual assault attracts a liability to imprisonment for a period of 20 years – six years more than what otherwise applies to a conviction for non-aggravated sexual assault.
  4. Mr Makasa was also charged with five other principal offences of aggravated sexual assault. These charges involved non-consensual vaginal intercourse, with the same young girl, on the following day, 31 August 2006 during a nine hour period from 7:00 am to about 4:00 pm. Non consensual sexual intercourse with a girl less than 16 years of age, is another category of aggravated sexual assault - under s 61J(2)(d) of the Crimes Act 1900 (NSW).
  5. The eight alternative offences with which Mr Makasa was charged related to the same alleged events as the principal charges. But they were not sexual assault charges. Nor did the charges involve any element of aggravation. They were charges of sexual intercourse with a person aged between 14 and 16, under s 66C(3) of the Crimes Act 1900 (NSW). Offences of that kind are punishable by a term of imprisonment of up to 10 years.
  6. The most material difference between the principal charges (of aggravated sexual assault) and the alternative charges (of sexual intercourse) relates to consent. The girl’s lack of consent to intercourse was an essential ingredient of the eight principal charges of sexual assault. Her consent was irrelevant to the eight alternative charges of unlawful sexual intercourse. Those charges could be made out by evidence of intercourse and the girl’s age, unless Mr Makasa had an honest and reasonable belief the girl had reached consenting age.
  7. In August 2009, after his fourth and three month long jury trial, Mr Makasa (and each of his co-accused), was found guilty of aggravated sexual assault involving the first charge of (vaginal) intercourse on the evening of 30 August 2006. All three co-accused were acquitted on all of the other charges of anal and oral sexual intercourse (both consensual and non-consensual) on the evening of 30 August 2006.
  8. Mr Makasa was also acquitted on all of the sexual assault charges relating to the events of 31 August 2006. In relation to the alternative charges of sexual intercourse with the girl on that day, the jury returned guilty verdicts on three of five charges.
  9. Therefore, the result of the jury verdicts in August 2009 relating to the 16 charges that had been brought against Mr Makasa was as follows:

OCTOBER 2009 - SENTENCES

  1. Mr Makasa was sentenced in October 2009 to a six year term of imprisonment for his conviction of aggravated sexual assault. The term of imprisonment was backdated to commence on 4 March 2008, and expire on 3 March 2014. The sentencing judge imposed a three year non parole period.
  2. Mr Makasa was sentenced to concurrent terms of two years imprisonment for each of his three sexual intercourse convictions. These three concurrent sentences were to commence on 3 September 2010 and expire on 2 September 2012. There was a one year non parole period for each offence. The practical effect of these additional sentences was to postpone Mr Makasa’s earliest parole eligibility date from 3 March 2011 to 2 September 2011. His latest (ie non parole) date for release from custody remained at 3 March 2014.

OCTOBER 2010 – SUCCESSFUL APPEAL AND RELEASE

  1. Mr Makasa did not appeal against his three convictions on the sexual intercourse charges relating to the events of 31 August 2006. He did challenge his conviction for aggravated sexual assault. He sought leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to argue that the jury verdict was unreasonable, and could not be supported by the evidence, in two respects: (i) the “joint enterprise” allegation; and, (ii) the likely inconsistency with the jury’s not guilty verdicts on all of the other sexual assault charges.
  2. The majority judgment in the Court of Criminal Appeal rejected Mr Makasa’s contention that the conviction was unsafe because of its apparent inconsistency with the not guilty verdicts on the closely related charges: see paragraphs [35] & [156]-[159]. But the Court of Criminal Appeal accepted that the evidence could not establish any joint criminal enterprise between the three co-accused. The Court held that the complainant’s evidence, that she was awoken by the first act of intercourse, could not properly establish any more than that the three men were in the room at the time. The Court of Criminal Appeal held that their mere presence was incapable of satisfying the jury the accused had any joint enterprise to effect that act of intercourse with her.
  3. The relevant passages in the Court of Criminal Appeal reasons were as follows:
149 There is no evidence of events or communications prior to the commission of the act of sexual intercourse that was the subject of Count 1 which was capable of assisting in proving that the appellants participated in a joint enterprise for one or more of them to have unlawful sexual intercourse with the complainant. Accordingly, for the appellants to be properly convicted on that Count the existence of the joint criminal enterprise had to be inferred from the circumstances in which that intercourse occurred. As the Crown accepted that there was no evidence capable of identifying which of the appellants had that intercourse with the complainant and as there was no evidence at the trial that any of the appellants said or did anything when this intercourse was taking place, proof of their guilt rested upon the nature of the inference to be drawn from their presence in Makasa’s bedroom at that time.
150 Bearing in mind my conclusion that the evidence in relation to each of the appellants has be to regarded as rising no higher than that the appellant was “on the floor” (see [115] – [116] above), the evidence was not in my view capable of satisfying the jury beyond reasonable doubt that any of the appellants “encouraged” the person who had the unlawful sexual intercourse with the complainant in the performance of that act. I conclude this even assuming, contrary to my view (see [134] above) that it was proved beyond reasonable doubt that each appellant was aware of sexual intercourse occurring with the complainant whilst she was asleep.
  1. The Court of Criminal Appeal’s 8 October 2010 decision directed a verdict of acquittal on the aggravated sexual assault charge. In addition, the court varied Mr Makasa’s sentences for his sexual intercourse convictions. The commencement date of those two year sentences was taken back to 4 March 2008. Consequently, at the date of the Court of Criminal Appeal’s 8 October 2010 judgment Mr Makasa had already served seven months more than the full custodial period of his sentence. He was immediately released.

CROWN SENTENCE APPEAL DISMISSED

  1. The Crown appealed against the sentences the trial judge had imposed in October 2009 for Mr Makasa’s three sexual assault convictions. The Crown contended they were manifestly inadequate.
  2. The Court of Criminal Appeal, in reasons published in September 2011, described the sentences as lenient, but otherwise within the appropriate range, except to one extent. The sentencing judge had erred by making an unduly favourable allowance for the amount of time Mr Makasa had spent in protective custody. However, the court noted that even without that error, Mr Makasa’s non parole sentence period would still have ended more than a year earlier than when he was actually released (in October 2010).

CONTROVERSY: THE SIGNIFICANCE OF THE APPEAL JUDGMENT AND THE TRIAL EVIDENCE

  1. The remarks of the sentencing judge in October 2009, and the Court of Criminal Appeal judgments, contain summaries or extracts of the evidence of the young girl’s account of the contentious events. In the course of the present review proceedings the parties disagreed about the significance that can properly be accorded to those accounts. The disagreement principally relates to the significance of Mr Makasa’s acquittal on the three charges of aggravated sexual assault relating to the events of 30 August 2006.
  2. The factual significance of the jury’s not guilty verdicts relating to the events of 30 August 2009 is unclear. As the trial judge observed, in the course of his sentencing remarks on 26 October 2009, the jury may have either:
  3. Each of these alternative explanations for the jury’s not guilty verdicts is more than a merely intellectual possibility. The sentencing judge declared his satisfaction that many acts of intercourse had occurred when the complainant was in the bedroom with at least some of the accused. Nevertheless he acknowledged the apparent unreliability of at least some aspects of the complainant’s evidence. Indeed he said it would have been perverse for the jury to have found Mr Makasa guilty of any of the sexual assault charges relating to the events of 31 August 2006. The Court of Criminal Appeal judgment noted that the jury must not have been satisfied by the girl’s evidence that she had objected to any intercourse on the evening of 30 August 2006, or that she had told the accused she was only 15, see paragraphs [38] & [157]. The judgment also noted that this tended to undermine the credibility of her evidence in relation to the charge that was the subject of the appeal.
  4. Mr Makasa contends the Tribunal is bound to confine its attention in the present case to the three instances of sexual intercourse on 31 August 2006, and not consider the events of the evening of 30 August 2006. The substance of this submission is that the Tribunal could not fairly and reliably reach its own conclusion about those events, and should not attempt to discern the particular factual elements that might explain the acquittals relating to them. Mr Makasa contends that it would involve a denial of natural justice for the Tribunal to attach any weight to the evidence of the complainant that is recounted in the trial judge’s sentencing remarks and in the judgments of the Court of Criminal Appeal. The injustice would result from attaching any weight to those aspects of the young girl’s accounts when they are obviously merely part of her evidence and, because she was not called to give evidence in these proceedings, her evidence was not relevantly tested.
  5. Contrary to the submissions made on his behalf, the Tribunal is not bound to confine its attention to the offences of which Mr Makasa was convicted. The Tribunal must have regard to those convictions. It may neither impugn the convictions nor the facts on which they are necessarily based. Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 at 653 & 655; Minister for Immigration v SRT [1999] FCA 1197; (1999) 91 FCR 234 at [25], [33]-[34]; Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313 at [42] & [44]. In addition, the Tribunal should, even in relation to factual issues that are not essential to the conviction, accept findings that were made in the relevant criminal proceedings: Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313 at [38] & [43]; and especially in connection with facts on which the sentence was based: Minister for Immigration v SRT [1999] FCA 1197; (1999) 91 FCR 234 at [20] & [40]-[46]. But the Tribunal must, as a fundamental part of its task, accord an applicant a hearing, and form a judgment “on all the matters which are relevant to the exercise of the power”: see Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 per Davies J at 656; Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313 at [45]. These propositions introduce some unavoidable tension between the use of contentious evidence to explain the underlying circumstances of the conviction (a use that is permissible) and to question the conviction itself (a use that is not permissible): Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441 at 469 per Sheppard J.
  6. But the limitations on the extent to which the Tribunal may consider evidence of the circumstances underlying a person’s conviction, have no wider application. They do not restrict the Tribunal’s obligation to consider apparently relevant evidence of a person’s conduct even if that conduct has not been the subject of criminal proceedings, or relates to an offence of which the person was acquitted. In Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 99 ALD 433 the appellant argued that the Minister had wrongly taken into account conduct where criminal proceedings had resulted in the person being acquitted. The Full Court of the Federal court rejected this contention: see especially [2007] FCAFC 196; (2007) 99 ALD 433 at [11], [21] & [24]-[27]. The following passage in the joint judgment of Justices Bennett and Buchanan put the matter unambiguously.
[11] As to the first ground the primary judge took the view, correctly, that a failure to prove a criminal charge beyond reasonable doubt did not immunise the conduct from consideration by the Minister in the exercise of a general discretion. The substance and detail of the allegations were put to the appellant. He made no response denying the factual allegations which had been drawn to his attention. The fact that a jury did not convict him of specific charges did not put his conduct beyond legitimate consideration.
  1. This statement is consistent with long established principle. A verdict of acquittal does not give rise to any issue estoppel and it does not, in any event, necessarily involve any factual finding at all. Two passages in the judgment of Barwick CJ said in R v Storey (1978) 140 CLR 361 are instructive in this regard. The two passages at 371 and 372 are as follows.
“The jury in a criminal trial, unlike a judge or jury in a civil trial, is not required positively to find facts, except for the purpose of a verdict of guilty. Thus, all that can certainly be said of a verdict of acquittal is that the accused was acquitted. The implications of a verdict of guilty may be quite different.”

“... no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury ...”
  1. The second of these passages related to the particular circumstances of the acquittal in that case. Other parts of the judgment of Barwick CJ, and also Gibbs J, recognised that an acquittal verdict might not be factually impenetrable in all situations: see 140 CLR at 374 and 388. That possibility has a particular potential relevance in the present case, in the light of the specific ground on which judgment of the Court of Criminal Appeal overturned Mr Makasa’s conviction.
  2. As we indicated in paragraph 14 above, there were two relevant grounds of appeal. The successful appeal ground was the challenge to the sufficiency of the evidence of joint enterprise. The unsuccessful ground contended the guilty verdict was unsafe because of its inconsistency with the not guilty verdicts on similar charges. The failure of this second ground, and the limited scope of the first ground, does not therefore provide a basis for saying that the Court of Criminal Appeal’s judgment necessarily eliminates the justification for the deference that the Tribunal would otherwise be expected to attach to a jury’s guilty verdict, and the non-consensual intercourse it necessarily determined had occurred.
  3. Mr Makasa’s submission is that the Tribunal should not embark on its own assessment of the offences of which Mr Makasa was acquitted. This submission appears to invoke, by analogy, the policy of restrained deference to contested judicial findings that is referred to in Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313 at [38] & [43]. But this submission must be rejected. It is inconsistent with the decision and reasoning in Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 99 ALD 433.
  4. Moreover, the issues raised in the present proceedings include all of the factual considerations mandated by Ministerial Direction 41. They are not limited to the issues raised in either the trial or the appeal proceedings. One of the primary considerations the Tribunal must address in the present proceedings is the extent of the risk of the occurrence of “serious criminal or harmful conduct” relevantly attributable to Mr Makasa’s continued presence in Australia: see Ministerial Direction 41 at cl 10(1)(a). Proper assessment of that matter requires wider considerations than the mere identification of his convictions, and the likelihood of repetition of the same kind of offences: see Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [52]-[58]. It requires consideration of at least the events of 30 and 31 August 2006 and, in particular, Mr Makasa’s likely culpable involvement in them.
  5. That consideration requires careful and restrained analysis. There are at least two particular reasons, apart from our basic statutory obligations, why that is the case. First the reasons Branson J identified in Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385; [2000] 106 FCR 313 at [38] indicate the potential disadvantages this Tribunal has in attempting to determine, long after the event, issues that have been the subject of a formal criminal trial. Second, the evidence in these proceedings has not included either the totality of the complainant’s evidence, or any further oral evidence from her.
  6. But the Tribunal proceeding to consider the events of 30 and 31 August 2006, in the light of the available evidence, and without any further evidence from the complainant in the criminal proceedings, does not involve any breach of the rules of natural justice. Mr Makasa contended to the contrary. He relied on a decision of the New South Wales Court of Appeal in Commissioner for Children and Young People v FZ [2011] NSWCA 111. In that case the Court of Appeal held that a denial of natural justice was involved in a Tribunal relying upon an unsworn statement containing allegations of indecent assault in circumstances where the allegations had never been the subject of any proceedings and the complainant was not available for cross-examination.
  7. The decision in that case does not establish that a breach of natural justice principles is necessarily involved in taking into account an unsworn and untested statement. What the case decides is that such a course will be inappropriate, unless the court or tribunal properly takes into account all of the considerations relevant to an assessment of the potential unfairness of receiving the statement into evidence: see paragraphs [47] & [70] - [73] of the judgment.
  8. The circumstances of the present case are quite different. The available evidence of the complainant against Mr Makasa is contained in the October 2009 remarks of the sentencing judge, and in parts of the October 2010 reasons for judgment of the Court of Criminal Appeal. It is certainly right to acknowledge that those passages only represent part of the complainant’s evidence. However, both the nature and purpose of the selections of the evidence included in those judicial observations and judgments, together with the status of the judges responsible for them, provide a degree of assurance that they fairly represent the substance of the complainant’s evidence. Furthermore, that evidence was sworn and very extensively tested in cross-examination in the criminal proceedings by Counsel on behalf of Mr Makasa and his co-accuseds. The remarks of the trial judge, in the course of his sentencing comments (at page 21), the contents of the passages set out in the Court of Appeal judgment, and the result of the trial, with a substantial number of not guilty verdicts returned by the jury, attest to the effectiveness of the challenges that were made to the complainant’s evidence.
  9. Mr Makasa’s Counsel in the present proceedings implicitly accepted the potential significance of effective representation in the criminal proceedings. Nevertheless he contended that it was of minimal significance in the present proceedings because the full content of the complainant’s evidence was not available to Mr Makasa’s current legal advisers. That contention is accurate, at least to the extent that the totality of the evidence was not put before the Tribunal. But the real question to be determined is whether there is relevant unfairness in having regard to the statements attributed to the complainant, to the extent that they have been set out in the remarks of the sentencing judge and in the Court of Criminal Appeal judgment. For the reasons we have set out in the preceding paragraph, we do not consider that there is any relevant unfairness. Furthermore, in assessing the potential for unfairness it is necessary for the Tribunal to have regard to Ministerial Direction 41. Paragraph 10.1.1(4)(a) of the direction requires a Tribunal to consider any relevant information and specifically includes "judicial comments in an individual's case". We recognise that the inclusion of extracts of an individual witness’s evidence within the body of a court’s published reasons does not, at least not necessarily, involve any endorsement of the reliability of the evidence. But the purpose of the inclusion of any such extracts is to provide a context for the court's reasoning and conclusions. For that reason we think it is necessary to have regard to the totality of the relevant judicial comments. The consequential weight, if any, that may be attached to the passages of evidence they contain will necessarily depend upon the context and the overall circumstances. But we are of the view that no breach of the rules of natural justice is involved in the Tribunal having regard to the contents of evidence of that kind, even in the absence of further cross-examination in these proceedings.

THE COMPLAINANT’S EVIDENCE

  1. The young girl complainant was interviewed by the police on 1 and 6 September 2006. The first interview dealt with the alleged events of the evening of 30 August 2006. The content of relevant parts of that interview were summarised in the sentencing judge’s October 2009 remarks and are set out in paragraphs [45] - [50] of the October 2010 Court of Criminal Appeal judgment. That material indicates that she was drinking alcohol after school with friends. One of them was an 18 year old girl who Mr Makasa knew, and was a regular drinker at a hotel he visited. They encountered Mr Makasa, and one of the co-accused men in the street. They decided to go to Mr Makasa’s home and continue drinking.
  2. The complainant, who had already been drinking heavily, continued drinking at Mr Makasa’s house. She vomited in the lounge room and, following some altercation with her friends, was taken outside. There she vomited again and passed out. According to her recollection she was there for about four hours. Later, at around midnight, she stumbled drunkenly back into the house. She was told to go into Mr Makasa’s bedroom. There she saw five people, including Mr Makasa and one of the other accused. She said she wanted to go to sleep. She was told she would have to take off her vomit soiled clothes. She was given a basketball jersey and sarong, into which she changed while the men remained in the room. She then lay on the bed. Mr Makasa told her she could stay because, in an apparent reference to the earlier altercation, her friends would have hurt her. They had actually taken her money and belongings, some of which the men said they had retrieved.
  3. The next thing the complainant said she remembered was waking up with a man having sex with her. She could not identify him, nor could she remember what he was wearing. She was crying and said a couple of times that she did not want to do it. There were a couple of men on the floor, one standing up near the bed and another sitting on the bed. She did not identify any of these men. She later described one of the co-accused men forcing her to perform oral sex. She said the sexual activity with the five males continued for two hours. In that period she complained of two acts of anal intercourse, but without identifying the perpetrators.
  4. In the course of cross examination during the first aborted trial, the complainant had identified Mr Makasa and his two co-accused as being present in the room when she woke up. She said that they were present during all the acts of intercourse. When she was asked what they were doing, she said that they were on the bed performing the acts of intercourse. She said that early on she had definitely said that she was 15 and did not want to do any of it. She cried on an off while it was going on.
  5. The complainant gave another account of events to a doctor when she was examined at 16:30 on the afternoon of 1 September 2006. This account is partly set out in paragraph [61] of the Court of Criminal Appeal’s October 2010 judgment. In that account she said she had woken up at 1:00 am on the morning of 1 September 2006 surrounded by five naked men. They had then taken turns in having vaginal, oral and anal sex with her throughout the rest of the day until about 4:00 pm. During her cross examination about this account, the complainant conceded that she had not identified any of the co-accused, apparently despite having been shown by the investigating police officers photographs that included those of Mr Makasa and his co-accused.
  6. The complainant's 6 September 2006 interview related to the events of 31 August 2006. She said that she had woken up in Mr Makasa’s bed at about 7:00 am. At some stage Mr Makasa asked her to have sex with him. She refused. She said, and when challenged in cross examination insisted, that Mr Makasa had intercourse with her at least 25 times during the course of the day. She claimed she cried throughout the day. At some stage she told him that she was fifteen. At no time that day was Mr Makasa aggressive towards her. Nor did she try to leave. She claimed she thought she would be worse off if she tried, even though she also said Mr Makasa had gone to sleep many times.

PROBLEMS WITH THE COMPLAINANT’S EVIDENCE

  1. The fact that the jury returned not guilty verdicts on the sexual assault charges involving anal and oral intercourse, really suggests that either those acts did not occur or the jury disbelieved the complainant’s evidence that she both protested and told the men that she was only 15. If, as the complainant professed to recall, she had said both of those things, it is difficult to accept that the jury would have returned verdicts of not guilty. Conversely, if the jury accepted the girl’s evidence that she was asleep when the first act occurred, it is surprising that they did not also accept that the following acts of intercourse occurred and that she protested about them. We would infer a real risk that there were aspects of the complainant’s evidence that the jury was likely to have found quite unreliable.
  2. That risk of unreliability is inherent in the complainant’s initial inability (at the time she provided her first statement to the police on 1 September 2006) to identify any of the men who were in the room at the time she was awoken by the first act of vaginal intercourse. On the prosecution case there were only three possible perpetrators. At least one of them, Mr Makasa himself, was known to her (when she made her police statement) for at least four reasons: (i) he had given her permission to sleep in his bed; (ii) he had given her a change of clothes; (iii) she had slept next to him the whole night, after the other men had left the room; and, (iv) she claimed to have had sex with Mr Makasa in excess of 20 times the following day. Against this background, the complainant’s failure to immediately identify Mr Makasa as one of her assailants on the evening of 30 August 2006 requires a sceptical assessment of her evidence.
  3. The Crown Prosecutor, the trial judge and the jury must all have formed the view that there were aspects of exaggeration, or at least unreliability, in the complainant’s evidence. This is highlighted by the fact that Mr Makasa was charged with only five offences in relation to the events of 31 August 2006 (when the girl complained of at least 25 instances), by the jury’s not guilty verdicts relating to all but the three instances Mr Makasa effectively admitted, and by the trial judge’s indication that he would have regarded as “perverse” a guilty verdict on the sexual assault charges relating to the events of 31 August 2006. These past assessments of the young girl’s evidence suggest that neither minute examination of every material part of her evidence, including her electronically recorded record of interview, nor even further oral evidence from the girl in the present proceedings, would be likely to permit confident assessment of the reliability of her evidence. This is particularly the case in attempting to identify the precise extent of Mr Makasa’s culpable conduct in relation to the events on the evening of 30 August 2006. We will return to this matter later in these reasons.

MR MAKASA’S TRIAL DEFENCE

  1. Mr Makasa was legally represented at his four trials. Neither he, nor any of his co-accused, gave evidence. He was entitled to take that course, and likely did so on legal advice.
  2. Mr Makasa’s trial defence was that he did not have sexual intercourse with the young girl in the presence of other men. It was his case that there was no evidence capable of proving beyond a reasonable doubt that he was in his room at the time of the alleged offences during the evening of 30 and 31 August 2006.
  3. The Respondent sought to characterise this defence as not involving any denial that Mr Makasa had sexual intercourse with the girl on the evening of 30 August 2006. In particular, the Respondent suggested that remarks in the dissenting judgment in October 2010 Court of Criminal Appeal judgment (at paragraph [210]), highlighted the limited nature of the defence, and its arguably implied acknowledgement of sexual intercourse by Mr Makasa. We do not accept this submission. With respect to the submission, and the judicial observation that may have prompted it, we regard it as unsound. Mr Makasa’s defence case was based on the proposition that he denied being present in the room at the time of any of the offences charged. There is, to our mind, no justification at all for characterising such a defence as involving an admission of any sexual intercourse. If the proposition underlying the submission is that there may have been other instances of sexual intercourse than those charged, that possibility is not one that Mr Makasa’s trial defence was required to contemplate. Consequently the inference the Respondent invites the Tribunal to draw from the characterisation of that defence is not justified.
  4. In relation to the young girl’s allegations of at least 25 acts of non-consensual intercourse on 31 August, Mr Makasa’s defence conceded, by virtue of the propositions that were put in her cross examination, three acts of consensual intercourse. It was contended that these occurred in circumstances where he honestly and reasonably believed she was at least 16 years old. That contention was based on the following propositions: (i) the medical evidence established that the girl was “fully developed”; (ii) she told Mr Makasa she had bought alcohol; (iii) she had bought cigarettes and handed them around; and, (iv) she should not be believed in her evidence she told Mr Makasa she was only 15.

MR MAKASA’S AFFIDAVIT EVIDENCE IN THESE PROCEEDINGS

  1. Mr Makasa’s affidavit dealt only with the circumstances of the offences for which he had been convicted, the 3 instances of intercourse on 31 August 2006. He said that the girl had woken him up early in the morning. She professed to be bored and began to prompt him into conversation by asking him questions about his life, his family, work and studies. He showed some pictures of his daughter and his partner. After some more conversation they began kissing and eventually had sex.
  2. Later in the day they she had looked around the house, examined his music collection, looked at other photos. They listened to music together and talked. They had sex on two more occasions that day. At one stage he suggested she go out to buy food whilst he had a shower. He gave her his credit card. But she said she could not be bothered going.
  3. Later he had to get ready to go to work on a night shift. She decided to leave. She asked him if they would see each other again, to which he responded without commitment. Then she left.
  4. Mr Makasa said he never had any reason to suspect she was only 15. But in hindsight he recognised that, he had put himself in a bad situation.

MR MAKASA’S ORAL EVIDENCE

  1. Mr Makasa’s evidence of his street encounter with the complainant was substantially similar to the complainant’s evidence. He knew one of the girls she was with, and another boy, as regular drinkers at a nearby hotel. The boy asked if they could all come back to Mr Makasa’s place. The complainant and her friends had alcohol they were drinking. They continued drinking after they got to Mr Makasa’s place.
  2. The complainant vomited in his lounge room. She went outside. He spent some time cleaning up. After a while she came back inside and sat on some steps near his bedroom door. She appeared to have sobered up, somewhat.
  3. Mr Makasa and some of the others, but not the complainant, then decided to go to the hotel. She wanted to lie down. Some of the girls she was with took her into Mr Makasa’s housemate’s room.
  4. All of the group, apart from the complainant, then left. Mr Makasa went to the hotel with some of the others. He returned some time later, just before his housemate arrived home. After his housemate arrived home the only people there were his flatmate and his girlfriend, the three co-accused, and the complainant.
  5. Precisely when Mr Makasa returned is a matter of some uncertainty. He initially said he returned home somewhere around midnight. Later he varied that to perhaps about an hour earlier. This is likely to be a more accurate timing. His housemate, Mr Chinyani who had neither been part of the earlier gathering, nor present at the hotel, gave evidence at the criminal trial. He said he and his girlfriend returned home at about 10:45. Mr Makasa was already home, when he arrived.
  6. When Mr Makasa got home from the hotel the complainant had moved from Mr Chinyani’s room and was on Mr Makasa’s bed. He asked what she was doing. She said she had vomited in Mr Chinyani’s bed. She asked if she could sleep on his bed. He was annoyed, but he said she could sleep there if she changed her clothes. He gave her a change of clothes and stood at the partly open door, not looking at her, whilst she changed. He assumed that after that she went to sleep.
  7. At some stage Mr Makasa says he went outside to his car. He says he had two phone conversations with his partner. Some months earlier, in June 2006, she had moved to Perth with their new born daughter.
  8. Later, after he had come back inside, Mr Makasa saw one of his co-accused sitting on the bed in his room with the complainant. They were both sitting up on the side of the bed. They were kissing, in a fashion that he described as “making out”.
  9. Some time later, when Mr Makasa came back inside after his second phone conversation with his partner, Mr Makasa’s co-accuseds were preparing to leave. One of them had spent most of the time in the lounge room. The other had been in his bedroom talking with, and kissing, the complainant. They left and Mr Makasa went to bed. He got into his bed, with the complainant.

PROBLEMS WITH MR MAKASA’S EVIDENCE

  1. Mr Makasa’s evidence in these proceedings disavowed any knowledge of intercourse in his bedroom on the evening of 30 August 2006. But there are good reasons to accept that intercourse with the young girl did occur. There are also good reasons to be concerned that Mr Makasa was one of the perpetrators.
  2. We referred in paragraph 22 above to the sentencing judge’s satisfaction that many acts of intercourse occurred in the bedroom with the young girl on the evening of the 30 August 2006. In expressing "no doubt" about that conclusion the sentencing judge relied upon the complainant’s evidence, DNA evidence (the content of which is not disclosed) and the evidence of Mr Makasa’s housemate, Mr Chinyani.
  3. Mr Chinyani had arrived home with his girlfriend at about 10:45 pm. As he arrived he heard "bed rocking" noises coming from Mr Makasa’s bedroom. The door was shut but Mr Chinyani heard and identified the voices of the three co-accused. He also heard a female voice. Later, when he was in his own bedroom he heard further "bed rocking" coming from the adjoining bedroom.
  4. In the statement he made to the police on 1 September 2006, in the course of cross-examination at the first trial, and again in cross-examination in the second trial, Mr Chinyani described the female voice he heard in Mr Makasa’s bedroom as laughing. But there was another part of his police statement. He was cross-examined (with leave) by the Crown prosecutor at the second trial and agreed that he was truthful when he had said in his police statement that he had heard the sound of a girl’s voice. It was like screaming but he couldn't say whether or not it was good or bad screaming. He could not say whether or not it was the sound of someone enjoying sex or not. He said it was too hard to say either way.
  5. Perhaps more significant, for present purposes, is the content and sequence of events relating to a conversation Mr Chinyani said he had with Mr Makasa sometime after he arrived home. Mr Makasa knocked on the door of Mr Chinynai’s bedroom. He had a jacket tied around his waist but was otherwise apparently bare legged. He asked for condoms. Mr Chinyani gave him two. About five minutes later Mr Chinyani heard the, hard to describe, sound of the girl’s voice coming from Mr Makasa’s bedroom.
  6. Unsurprisingly, the Respondent emphasised that this evidence, and a number of other considerations, were strongly suggestive of Mr Makasa’s knowledge of, and likely participation in, multiple acts of sexual intercourse with the young girl in his room. The Respondent relied upon the following considerations
  7. In his evidence in the present proceedings Mr Makasa did admit having a conversation with Mr Chinyani. He said this conversation occurred in the corridor outside Mr Chinyani’s bedroom. It occurred after he saw the complainant and one of his co-accused sitting on his bed kissing. Mr Makasa said he could not remember whether he actually obtained any condoms from Mr Chinyani. He did not think he asked for any. But when pressed further, he did not deny that he had asked for condoms. He said he may have, but he still did not think he did. In any event he denied that he had asked for them for the purpose of having sex with the complainant. And he said he was wearing tracksuit pants at the time of the conversation.
  8. The following part of the cross examination in these proceedings was conducted on the basis that Mr Makasa had fully conceded he asked Chinyani for condoms. It asked him to explain why. His answers suggested that he was anticipating meeting some other women the next day. He was asking in advance, in case Mr Chinyani left early in the morning before he could speak to him.
  9. This explanation for the condom request, having regard to the time and the circumstances of Mr Makasa’s conversation with Mr Chinyani was implausible. But it may have been that the witness and the cross examiner were at cross purposes, because of misunderstanding about the real extent of the concession he had made. But Mr Makasa’s partial concession that he might have asked Chinyani for condoms is rather difficult to understand in the light of his evidence that, at the time, he thought he still had some condoms in his bedroom. These were left over from the time when his then partner had been living here before she left to go to Perth.
  10. If Mr Makasa thought he still had some condoms in his bedroom, there was no reason to ask Chinyani for more, and less reason to concede that he may have. In response to further questioning from the Tribunal, and after being reminded of his equivocal answers the day before, Mr Makasa was asked to explain why he had asked Chinyani for condoms. He could not offer any explanation. One possible explanation for such a request is that at the time he knew other men were in his bedroom and had already had sex with the complainant and he intended to do the same. This possibility was suggested to Mr Makasa, but he rejected it.
  11. In his evidence in these proceedings Mr Makasa suggested the conversation he had with Mr Chinyani had another context. Instead of involving a simple knock on the bedroom door and a request for condoms, Mr Makasa suggested that the conversation had a background in his complaints about Chinyani smoking marijuana and provoking complaints from neighbours about bringing friends home and creating loud disturbances with them. He said he had already formed the view that Chinyani would have to move out. He said that the conversation actually involved arguing and resulted in a confrontation. If that was the relevant context of Mr Makasa’s conversation with Mr Chinyani on the night of 30 August 2006 it appears to enhance the probability that his request for condoms was an exigent request prompted by the prospect of immediate intercourse with the complainant. It does not appear likely to us that a conversation involving argument about Mr Chinyani’s behaviour and continued residence would have been either accompanied, or followed, by a request for condoms - unless as a matter of some opportunistic urgency in Mr Makasa’s perception.
  12. Without hearing from Mr Chinyani, or knowing the totality of the evidence he gave in the trial proceedings, we could not entirely dismiss Mr Makasa’s evidence. Neither could we discount the possibility that Mr Chinyani’s version of events was inaccurate or incomplete in some respects. But the most material aspect of his evidence, as it seems to us, is the fact of Mr Makasa’s late night request for condoms. At its most equivocal, Mr Makasa’s recollection was that the conversation may have occurred, rather than that he certainly did ask Chinyani for condoms. But even the limited concession that he might have asked Chinyani for condoms is significant. It is significant because equivocation about such an apparently remarkable request is unlikely. As we have already suggested, the request is remarkable for at least two reasons: (i) the absence of an immediate purpose for the request (other than intercourse with the complainant); and, (ii) Mr Makasa’s recollection that he already had some condoms in his room. Acceptance of the trial evidence that Mr Makasa was barely clothed at the time he spoke to Chinyani, would make the request even more remarkable. Mr Makasa’s diffident concession that it may have occurred seems to us to betray subjective acceptance of the accuracy of Mr Chinyani’s evidence. In our opinion, Mr Makasa’s equivocation on this matter permits a more comfortable acceptance of Mr Chinyani’s evidence.
  13. The Respondent was very critical of Mr Makasa’s evidence in these proceedings about the events on the evening of 30 August 2006. Many of these criticisms were justified. His evidence about the time he got back from the hotel was imprecise. His evidence about having had two phone conversations with his partner in Perth was very vague, about both the timing and the duration of the conversations. It was also difficult to accept that having allowed the young girl to sleep in his bed, because she needed to recover from her gross inebriation, he would have discretely hovered around in the lounge room whilst one of his acquaintances then “made out” (to use Mr Makasa’s description of the kissing to which we referred earlier). And his denial of any knowledge that anyone had sex with the complainant that night in his bedroom, contrasts starkly with what Mr Chinyani said he heard in the adjacent bedroom.
  14. Part of the reason for Mr Makasa’s unimpressive recollection of the events of that night may be explicable by his own inebriation. He had been drinking before he left to go to the nearby hotel. He had a further drink at the hotel. He characterised himself as tipsy but not drunk.
  15. Another reason for Mr Makasa’s unimpressive recollection may be his positive desire not to recall. Here we are alluding merely to the unattractive prospect of attempting to recall events of a night, now more than five years ago, that has been the occasion for so much intervening disruption in his life. Both the passage of time and the unpleasantness of the task of attempting to recall, might detract from the ability to express even honestly held recollections, in a way that is credible to a critically sceptical listener.
  16. The kinds of considerations we have acknowledged in the immediately preceding paragraphs illustrate some of the reasons why restraint is required in the evaluation of Mr Makasa’s evidence. Additional reasons for restraint are provided by some difficult to explain aspects of the complainant’s evidence.

CONDUCT INVOLVED IN MR MAKASA’S CONVICTIONS - 31 AUGUST 2006

  1. Protection of the Australian community from “serious criminal or other harmful conduct” is a mandatory primary consideration in the exercise of the power to cancel a person’s visa under s 501 of the Migration Act 1958. It is to be evaluated with regard to the nature and seriousness of “the relevant conduct”, and also to the risk “that the conduct may be repeated”: see Ministerial Direction 41 cl 10(1)(a), 10.1(2), 10.1.1 and 10.1.2.
  2. Crimes involving violence are of special significance in evaluating the potential protective function of a visa cancellation decision. Indeed most of the illustrative examples of serious “offences and conduct” provided in Ministerial Direction 41 involve violent offences: see Ministerial Direction 41 cl 10.1.1(1) & (2). These crimes of violence would necessarily include rape (i.e.: the kind of “sexual assault” offences of which Mr Makasa was acquitted). But “sexually based offences” particularly those committed against children, are also characterised as serious offences. Mr Makasa’s three sexual intercourse convictions certainly fall within the categories of offences the Ministerial Direction contemplates as serious.
  3. But the conduct relevant to the exercise of the visa cancellation power is not necessarily to be characterised as serious merely because of the nature of the offence. Ministerial Direction 41 requires regard not only to the sentence imposed but also to “any relevant information”, including any mitigating factors: Ministerial Direction 41 cl 10.1.1(3), 10.1.1(4)(a) & (b).
  4. The three cumulative two year sentences Mr Makasa received for his sexual intercourse convictions were very much less than the potential maximum period of 10 years imprisonment on each charge. In addition the non-parole period imposed was only one year. Consequently, it is proper to conclude that the sentencing judge dealt with Mr Makasa on the basis that the conduct involved in his offences was not overtly coercive. This view is consistent with the sentencing judge’s remarks noting the complainant’s concession that she had not attempted to leave Mr Makasa’s home at any time during the day on 31 August 2006 and that he was not at any time aggressive towards her. What is unclear is the extent to which the sentencing judge regarded the girl’s behaviour during the day on 31 August 2006 as objective (but legally ineffectual) consent to intercourse or merely an externally manifested co-operation induced (as she asserted) by apprehension.
  5. We are of the view that Mr Makasa’s conduct in relation to the events of 31 August 2006, even if they were evaluated on the assumption that he was neither aware of, nor involved in, any sexual intercourse with the complainant on the preceding evening, involved a serious offence. There were three incidents of intercourse during the day. His convictions show that the jury was satisfied, beyond reasonable doubt, that he did not have a reasonable and honest belief that the girl was of age at the relevant time. We are aware of Mr Makasa’s affidavit evidence in these proceedings that he never had any reason to believe that the girl was under age. But his evidence did not descend into any particular factual observations, beyond his knowledge that some of the people she was originally with were known to him as regular hotel drinkers (and therefore presumably at least 18 years of age), and his claim that she told him she had bought alcohol. Mr Makasa’s evidence was really little more than an assertion, and one we are not inclined to regard as persuasive. We think it is proper to attach more significance to the jury’s guilty verdicts in relation to these charges, and their inconsistency with satisfaction that Mr Makasa honestly and reasonably believed the girl was 16 years of age. We recognise the guilty verdict might have been based merely on satisfaction that any view Mr Makasa had about the girl’s age was unreasonable and mistaken, rather than simply dishonest. But even on that latter view of the situation, we regard Mr Makasa’s conduct as relevantly serious. He had intercourse three times with a young girl he knew only as the drunken person he had allowed to sleep in his bed the night before. These incidents of sexual intercourse had no significance to him, and he had, on the most favourable view of the evidence accepted by the trial jury, no reasonable basis for believing the girl was at least 16 years of age.

CONDUCT INVOLVED IN THE EVENTS OF 30 AUGUST 2006

  1. The Respondent submits the Tribunal should find that Mr Makasa engaged in sexual intercourse with the complainant during the evening of 30 August 2006. Indeed the Respondent submits the Tribunal should find that Mr Makasa sexually assaulted the young girl. Alternatively, the Respondent encouraged the Tribunal to find that Mr Makasa stood by whilst one or more of his co-accused had non-consensual intercourse with her.
  2. Although Mr Makasa was acquitted of all of the charges relating to the events of that evening, the Respondent submits that those acquittals do not excuse the Tribunal from evaluation of their significance in the exercise of the cancellation power. Underlying the Respondent’s submissions are: (i) reliance on the decision of the Full Federal Court in Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 99 ALD 433 (to which we have referred in paragraph 24 above); and, (ii) the disjunctive expression in Ministerial Direction 41, which mandates consideration of the protection of the Australian community from “serious criminal or other harmful conduct”: see cl 10(1)(a) and 10.1(2)(a). In the Respondent’s submission, the disjunctive reference to “other harmful conduct” is a telling indication that unproven criminal conduct, and even non-criminal conduct, is at least potentially relevant as a mandatory consideration in the exercise of the visa cancelation power. Furthermore, the Tribunal did not have to be satisfied of either of these matters, either beyond reasonable doubt or on the balance of probabilities. It was sufficient, the Respondent contended, if the Tribunal was sufficiently satisfied that the evidence established the likely correctness of the findings for which the Respondent contended.
  3. Mr Makasa’s submissions recognised the apparent significance of the disjunctive expression in clause 10(1)(a) of Ministerial Direction 41, but contended that proper consideration of potential protection of the Australian community could only sensibly be evaluated by reference to the conduct that underlay the conviction. Moreover, Ministerial Direction 41 itself required that regard be had in the exercise of the discretion to the fact that a person’s conviction had been set aside: see clause 10.1.1(4)(e). Mr Makasa submitted that this requirement could only realistically be satisfied by refusing to attach significance to the contentious facts involved in the acquittal. These submissions also emphasised the “risk of re-offending” referred to in clause 10.1.2 of Ministerial Direction 41. They contended that the concept of “re-offending” could not realistically include conduct other than that which underlay the conviction that triggered the exercise of the visa cancellation power.
  4. Mr Makasa’s alternative contention was that if other conduct was relevant to the exercise of the visa cancellation power, it had to be conduct which the Tribunal was satisfied had occurred and did culpably involve the visa claimant. This submission contended that the evidence before the Tribunal was incomplete, did not include oral evidence from the complainant and was wholly inadequate to permit the Tribunal to come to any proper conclusion about the nature and extent of the contentious conduct, or about Mr Makasa’s culpable involvement.
  5. We do not accept Mr Makasa’s principal submission. It is contrary to the reasoning in Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 99 ALD 433. It is also contrary to the reasoning in Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [52]- [58] (to which we referred in paragraph 30 above). It would truncate the scope of potentially relevant conduct in a way that is contrary to the terms of clauses 10 and 10.1 of Ministerial Direction 41. More importantly, it would tend to restrict the relevant factual enquiry about a visa holder’s conduct in a way that is unlikely to effectuate fully the mandatory primary consideration of protection of the Australian community. It would also tend to result in different, and narrower, considerations being relevant to assessment of the primary consideration of protection depending upon whether the visa cancellation power had been triggered by: (i) a substantial criminal record; (ii) association with an entity reasonably suspected of criminal conduct; (iii) general absence of good character; or, (iv) the risk the person will harass, intimidate or vilify persons in Australia: see Migration Act 1958 ss 501(6)(b)-(d). Finally there is no warrant for interpreting the obligatory irrelevance of inoperative convictions to the statutory “character test” (see Migration Act 1958 s 501(10), as precluding regard to relevant, contentiously criminal, conduct in the exercise of the visa cancellation power.
  6. Notwithstanding our rejection of Mr Makasa’s principal submission, it is not appropriate in these proceedings to make either of the findings for which the Respondent contends. There are a number of reasons why it is not appropriate.
  7. First of all there is the problematic exercise of determining the significance of the jury’s not guilty verdict on 2 of the three sexual assault counts on the evening of 31 August 2006. The only fact known with certainty is that the jury found all of the accused not guilty of those charges, but guilty of the first charge. It is intellectually possible that the jury simply dismissed these two alternative charges because their degree of satisfaction as to whether they had occurred fell between an impression of likelihood, on the one hand, and satisfaction beyond reasonable doubt, on the other. The same intellectual possibility exists in relation to the issue of whether the girl consented. The existence of these possibilities, and the way in which they permit the jury’s “guilty” and “not guilty” verdicts to be reconciled, was addressed in the sentencing judge’s October 2009 remarks.
  8. But the task the Tribunal has to undertake is not that of reconciling the jury’s verdicts. It is to arrive at the appropriate assessment of the totality of the evidence available to it, including the jury’s verdict. In attempting that assessment we note the accounts the girl gave of repeated acts of intercourse. But in so doing we also note the imprecision of the girl’s accounts, and the unreliable way in which implicated the individual accused in the assaults. We also note the element of exaggeration in her account of seeing five naked men beside the bed (see paragraph 40 above) and in the allegations she made about the events of the following day (see paragraph 41 above). We accept that the exaggeration in at least these aspects of her accounts may be consistent with being inebriated, distressed, or apprehensive for her safety, when the events occurred. But this kind of consistency is problematic. It reinforces the need for care and appropriate restraint in evaluating the evidence.
  9. We consider that we need to pay careful regard to the apparent inconsistency of the jury’s guilty and not guilty verdicts on the three joint charges of sexual assault. It is, to our mind, difficult to conclude that the jury accepted critical aspects of the complainant’s evidence about the two charges on which they acquitted the co-accused. Her evidence was that these acts of anal and oral intercourse occurred, and that she had told the men not only that she objected, but also that she was only 15.
  10. It follows that unless the jury really doubted that multiple acts of intercourse had occurred on the evening of 30 August 2006, the jury’s respective verdicts of guilty and non-guilty really make little sense except on the basis that the jury: (i) accepted the complainant’s evidence that she was asleep when the first act of intercourse commenced; but, (ii) did not accept her evidence that she protested about the subsequent acts of anal and oral intercourse. Furthermore the jury also acquitted the co-accused on the alternative charges of sexual assault. There were only two reasons why these charges could have resulted in a not guilty verdict: (i) reasonable doubt that the intercourse occurred; and, (ii) reasonable doubt that the co-accused did not have an honest and reasonable view that the girl was 16 years of age. But the latter possibility seems more intellectual than real, given: (i) the girl’s evidence that she gave her age at the time; and, (ii) the “guilty” verdicts in relation to the 3 charges against Mr Makasa the following day. We consider that there is a real possibility the jury simply disbelieved the complainant’s evidence that the two protested acts of oral and anal intercourse occurred at all.
  11. This takes us to the jury’s guilty finding, against all the accused, on the first sexual assault count. This finding is really only explicable on the basis that the jury accepted the complainant’s evidence that she was asleep when the intercourse started. The finding probably also accepts the girl’s evidence that she could not identify the perpetrator. Neither of these aspects of the complainant’s evidence provides an adequate basis for concluding that Mr Makasa was himself the perpetrator of the first act of intercourse.
  12. If this was the totality of the evidence in the present proceedings we would regard it as providing no proper basis for either of the findings for which the Respondent contends. But the evidence does go further. In includes both the evidence of Mr Makasa’s housemate, that he heard “bed rocking”, sounds of laughter and provided condoms: see paragraphs 64 to 66 above. It also includes Mr Makasa’s corroboration of his largely inexplicable request for condoms (a matter to which we have referred in paragraphs 68 to 73 above). Those additional aspects of the evidence significantly enhance the likelihood that at least one person had sexual intercourse with the complainant in Mr Makasa’s bed on the evening of 30 August 2006. The fact that he asked for condoms, is some evidence of Mr Makasa’s intention to have intercourse with the complainant. Taken together, these various considerations enhance the likelihood that he did.
  13. For these reasons we recognise the force of the Respondent’s contentions in relation to the probability that the complainant was subjected to multiple acts of intercourse in Mr Makasa’s bedroom. But we do not regard the evidence as justifying a conclusion that Mr Makasa was the perpetrator. Still less are we satisfied that it would be appropriate to conclude that he engaged in intercourse without her consent.
  14. Our view that we would not be justified in making either of the findings for which the Respondent contends in relation to the events of the evening of 31 August 2006 is substantially based on our analysis of the jury findings. Those findings betray a reluctance to accept the young girl’s evidence on very significant issues, particularly her alleged protest about all the asserted acts of intercourse on the evening of 31 August 2006, and her claim that she told the men she was only 15. We think it is rather unlikely that the jury dealt with the not guilty charges to which this evidence related, merely on the basis of a “reasonable doubt” about the issue of consent. We think it is significantly more likely that the jury simply disbelieved the claimant’s evidence.
  15. We recognise that the jury did accept the complainant’s evidence on the first sexual assault charge. We recognise also that the Court of Criminal Appeal set aside that conviction on the grounds that (i) only antecedent acts could relevantly establish the joint enterprise on which the conviction depended and that (ii) the evidence of those antecedent acts was not capable of satisfying the jury, beyond reasonable doubt, of the existence of a joint enterprise to have non-consensual sexual intercourse with the complainant. These findings of the Court of Criminal Appeal might seem both limited (as being confined to an opinion addressing the standard of proof in criminal proceedings) and correspondingly debatable when they fall to be evaluated in other proceedings. In that context the Respondent sought to draw comfort from the dissenting judgment of McCallum J in the Court of Criminal Appeal. But in our view we are obliged to pay primary regard to the authoritative judgment in the appeal proceedings, and to the reasoning on which it was based. It would be wrong for us to proceed on the basis of preferring the reasoning or conclusion in a dissenting judgment.
  16. The Court of Criminal Appeal decision, based on the extensive and carefully expressed reasons of Macfarlan JA was that, as a matter of law, the complainant’s trial evidence was not capable of justifying a “joint enterprise” finding. We do not regard that finding, in the light of the detailed reasoning on which it was based, as amenable to any qualification. We cannot discern from the reasons expressed by the Court of Criminal Appeal a basis for rational evaluation of the claimant’s evidence as insufficient to justify a conclusion of joint enterprise in criminal proceedings, and yet sufficient to permit such a conclusion in the present proceedings involving no such standard of proof. Neither do we consider that the potential insufficiency of the complainant’s contentious evidence of joint enterprise has been relevantly overcome by the contents of Mr Makasa’s evidence in the present proceedings. We have discussed that evidence earlier, and expressed our reservations about it. The Respondent submitted that his evidence was evasive and improbable (particularly in relation to his claim to have had several phone conversations with his partner in Perth). Those criticisms are not without basis. But even so, there is nothing in Mr Makasa’s evidence that really goes beyond providing a basis for suspecting that he intended to have intercourse with the complainant. We do not regard it as capable of meaningfully enhancing the justification for a conclusion that the three co-accused had decided to co-operate in effecting unlawful sexual intercourse with the complainant.
  17. The evidence before us in the present proceedings does not include the totality of the evidence in the four trials to which Mr Makasa was subjected. But our dissatisfaction with the sufficiency of the evidence to establish the propositions for which the Respondent contends is highly unlikely to have been overcome by consideration of the totality of that evidence. The jury was provided with the totality of that evidence. And yet the jury’s verdicts involved the apparent rejections of the complainant’s evidence, to which we have referred above.
  18. We accept that the findings for which the Respondent contends in these proceedings do not require satisfaction beyond reasonable doubt. Nevertheless they are significant findings. They would constitute, in practical reality, a formally recorded declaration by this Tribunal that Mr Makasa had sexually assaulted a 15 year old girl, or had at least witnessed and condoned others assaulting her in his bed. A formal finding of either kind, and especially the former, would be a grave one to make. The potential impact that either finding might have on his future life is difficult to know, but its capacity to have an enduring, irremediable and adverse effect should not be underestimated. For those reasons we do not consider that we should make either finding unless we are satisfied both that the factual basis for the finding has been comfortably made out and that the finding is necessary to make for the proper exercise of the visa cancellation power.
  19. We have set out in the preceding paragraphs the substance of the reasoning for our conclusion that the complainant’s evidence did not provide a sufficient basis for the findings for which the Respondent contends in relation to the events of 30 August 2006. We set out in the next section of these Reasons, the basis for our conclusion that the proper exercise of the visa cancellation power does not require an explicit finding of the kinds for which the Respondent contends.

RISK OF REOFFENDING

  1. The primary protective consideration in the exercise of the visa cancellation power requires assessment of the person’s risk of re-offending. At the essence of the required assessment is the nature of any future serious harm attributable to the person’s possible conduct and whether the risk associated with it is “unacceptable”: see Ministerial Direction Cl 5.1, 5.2,10.1 & 10.1.2.
  2. In the October 2009 sentencing remarks the trial judge characterised Mr Makasa (and his co-accused) as very unlikely to re-offend. He expressed this view despite being aware of Mr Makasa’s previous convictions for driving whilst under the influence of alcohol and for assault. The trial judge was also aware that the offences of which Mr Makasa was convicted involved a breach of the good behaviour bond on which he had been placed following his assault convictions in November 2005.
  3. Although the objective stated in clause 5(2) of Ministerial Direction 41 is that of protecting the Australian community from “unacceptable risks of harm” the criteria for determining acceptability are obscure. If the apprehended conduct is either criminal or seriously harmful the criteria for characterising the risk of its occurrence as “acceptable” can only be provided by an impressionistic assessment of (i) the likelihood of its occurrence and (ii) the potentially harmful consequences for the affected persons, if the apprehended conduct does in fact occur. That impressionistic judgment must necessarily be influenced by perceptions of community values and standards: see Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690.
  4. In relation to the sexual intercourse offences of which Mr Makasa was convicted the statutory offence, and the potential length of the custodial sentence for which it provides, preclude any view other than that the offences were sufficiently serious to warrant characterisation as serious. Moreover the range of consequences that may follow for a victim of such an offence, are wide and variable. The likelihood of their occurrence, and the actual extent of the consequences, will vary according to the particular circumstances. They are likely to be comparatively less severe where the offence is not characterised by violence and coercion. But the potential length of the available custodial sentence indicates clearly to our minds that community values recognise a real and significant risk of harm associated with sexual intercourse with persons under 16 years of age.
  5. A risk of that nature is unacceptable unless there is a good basis for concluding that the risk of a future such offence, or other seriously harmful conduct, by the putative visa holder is very unlikely. We would put the matter as high as saying the risk is unacceptable unless the relevant decision maker is affirmatively satisfied that its happening is so unlikely that it does not warrant serious consideration. In putting the matter in this way we adopt the view the Tribunal expressed in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198: a risk that a person may engage in seriously harmful conduct may is real, and relevant to the exercise of the visa cancellation power, even if its actual probability of occurring is low or minimal, provided the possibility of its occurrence is not far fetched or fanciful.
  6. We accept that the sentencing judge, when dealing with both Mr Makasa’s sexual intercourse convictions, and the subsequently overturned sexual assault conviction, effectively characterised Mr Makasa’s conduct as opportunistic rather than premeditated, aberrant and unlikely to be repeated. We accept also that the complainant was apparently compliant in relation to the sexual intercourse offences that occurred on 31 August 2006. That appearance of compliance may have contributed to the events of that day, and that possibility is a relevant consideration.
  7. Nevertheless the fact remains that there were three incidents of sexual intercourse in circumstances where the jury was satisfied beyond reasonable doubt that Mr Makasa had no reasonable and honest belief that the girl was at least 16 years of age. We regard this as a very significant aspect of his conduct. We also regard as significant the fact that Mr Makasa’s did not advance, in his evidence in these proceedings, any significant factual observations or information on which he relied in satisfying himself about the young girl’s age. He asserted having no reason to believe that the girl was under 16. But this assertion reverses the proper reasoning process. What is more important to consider, relevant to the risk of re-offending, is whether Mr Makasa directed his mind to the question of the girl’s age before having intercourse with her and, if so, what information led him to a belief that she was at least 16 years of age. We could not derive from Mr Makasa’s evidence in these proceedings satisfactory answers to those questions. We are inclined to the view that his asserted belief in the girl’s age was an after the event response to the charges that had been brought against him. The submissions advanced on Mr Makasa’s behalf at the trial relied on medical evidence that the girl was “fully developed”, and on the girl’s assertions that she had bought alcohol and cigarettes. But these submissions must have been rejected by the jury. Their rejection coincides with our own view that the most likely reality was that Mr Makasa simply took advantage of the girl’s apparent compliance on 31 August 2006, without any real attempt to satisfy himself about her age.
  8. If the events of 31 August 2006 were considered in isolation, and fully accepted as aberrant, the risk of their repetition, or other seriously harmful future conduct by Mr Makasa might not warrant characterisation as unacceptable. But they need to be viewed against the background of three other considerations. These other considerations are: (i) Mr Makasa’s previous criminal record; (ii) his propensity to drink alcohol to excess; and, (iii) the evidence of psychological assessments of his risk of re-offending.
  9. In November 2005 Mr Makasa pleaded guilty to three charges of common assault. These charges involved a domestic dispute with his then partner and apparently involved events that occurred before about September 2005. There had been difficulties in the relationship during the preceding 12 months. Those difficulties had resulted in Mr Makasa moving out and living in separate rented accommodation. But he and his partner had maintained regular contact and he had moved back to live with her some time in the latter part of 2005. Nevertheless there was still tension in the relationship. Mr Makasa explained that the November 2005 conviction had resulted from an argument about the extent of his socialising with other friends. His partner had become upset and attacked him physically. He claimed he had simply restrained her, to defend himself. He had pleaded guilty to the three assault charges as a result of a legal aid solicitor’s advice that: (i) in any dispute about the circumstances of the alleged assault, the court’s sympathy would generally be with the woman victim; and, (ii) a guilty plea would likely be taken into account in securing a lenient sentence for any conviction.
  10. The Respondent criticised Mr Makasa’s explanation of the November 2005 conviction as self serving and superficial. The Respondent emphasised that the convictions evidenced three incidents of violence against a woman. They were indicative of potentially serious offences. We accept the generality of the Respondent’s submission, but proper consideration of these convictions must be balanced by the likely reality of the situation. That likely reality emerges from the realisation that: (i) there is no evidence to establish that his partner suffered any serious injury; (ii) despite his conviction Mr Makasa was neither fined nor sentenced and was merely placed on a bond to be of good behaviour for 18 months; and, (iii) by the time of the November 2005 conviction Mr Makasa and his partner had apparently resumed cohabitation and she either had conceived, or shortly afterwards did conceive, their first child. We would infer from these considerations the unlikelihood that the circumstances underlying Mr Makasa’s assault convictions involved any significant element of violence or injury to his partner.
  11. But the 18 month good behaviour bond that resulted from the November 2005 assault convictions is a significant matter, in the light of subsequent events. In July 2006 Mr Makasa had a motor vehicle accident. He explained that after a night of drinking with a friend he was so affected by alcohol that he momentarily passed out at the wheel of his partner’s car, and collided with another vehicle. This incident resulted in Mr Makasa being convicted in September 2007 of three related charges – namely: (i) driving whilst unlicensed; (ii) negligent driving; and, (iii) driving with a high range prescribed concentration of alcohol. He was convicted on all three charges, fined a total of $1,500 and disqualified for 3 years.
  12. Mr Makasa’s driving offences in July 2006 were significant and serious offences. His conduct in driving a motor vehicle, whilst both unlicensed and grossly affected by alcohol, is concerning in itself. The fact that it occurred only some eight months after he had entered into his good behaviour bond is a significant additional consideration. It rather suggests an inability or unwillingness to behave lawfully, and a serious element of irresponsibility in relation to the potential risks his behaviour presented to other people. Those deficiencies in his conduct were significantly contributed to by Mr Makasa’s alcohol consumption. He conceded that he indulged in binge drinking, and that at the time he had a bit of a problem with alcohol. We are inclined to think that Mr Makasa’s concession about having something of a problem reflects an understatement. The objective reality is that in mid 2006, at a time when he was on a good behaviour bond, he regularly engaged in binge drinking, that binge drinking involved excessive alcohol consumption. And despite both the good behaviour bond, excessive alcohol consumption, and holding no licence, Mr Makasa drove a motor vehicle.
  13. The events of July 2006 are concerning enough on their own. But they have an additional element of significance in the light of the birth of Mr Makasa’s daughter in May 2006. Mr Makasa sought to portray his daughter’s arrival as a matter of pride and excitement. But it also involved significant disruption. Within weeks of her birth Mr Makasa’s daughter was diagnosed as having Downs Syndrome. Mr Makasa’s partner returned to Perth to live with her parents. Mr Makasa remained in Sydney, although he said he had also planned to move to Perth, to join his partner, in November 2006. The events following the birth of Mr Makasa’s daughter must have been confronting. They certainly created a need for responsible behaviour on his part, if he was to provide proper support and assistance to his partner and daughter.
  14. Mr Makasa’s evidence in these proceedings included the report of a psychological assessment that had been carried out in late August 2011, for the purpose of the present proceedings. The report provided the result of a predictive assessment of Mr Makasa’s risk of re-offending. It contained opinions that Mr Makasa evidenced a low risk of re-offending, had continued to espouse attitudes and values commensurate with those of a law abiding citizen, and that he did not constitute any risk to the community.
  15. The author of this psychological assessment report ultimately conceded that it was subject to a material qualification. It involved only one of two well recognised and accepted risk assessment tests. The psychologist expected that Mr Makasa would have scored poorly on the other accepted test. That expectation, and the psychologist’s perception that Mr Makasa’s contemporary circumstances were more relevant to assess, was the reason why the psychologist had not used the second test. But the psychologist conceded that the most appropriate way of assessing Mr Makasa’s risk of re-offending was to carry out both assessment tests and then apply judgment to an interpretative evaluation of both tests. Because that had not been done the opinions expressed in the report were, the psychologist conceded, subject to material qualification.
  16. We do not regard the opinions expressed in this report as materially supporting an assessment that there is no relevant risk of harmful conduct if Mr Makasa’s visa cancellation was set aside and he was allowed to remain in Australia. Part of the reason for our opinion is the material qualification the author’s report acknowledged. Another reason was the limited, and consistently favourably presented, history described in the report. The author did not record an appreciation of the apparent inconsistency between the observation that Mr Makasa espoused law abiding attitudes, and the breach of his good behaviour bond. The author appears to gloss over an observation that Mr Makasa’s test scores indicated “grave difficulties in establishing meaningful relationships with adult females”. The report concluded that this factor was not relevant, because of his lengthy relationship with his former partner, and his current relationship. This expressed reasoning is, with respect to the author, quite unpersuasive. Mr Makasa’s relationship with his former partner involved probably less than two and a half years of cohabitation, included a 12 month period when they lived separately and also included an incident of violence apparently precipitated by a dispute about his behaviour. We would not regard that relationship as necessarily demonstrating the irrelevance of the “grave difficulties” indicated in a recognised psychological test assessment. Nor do we regard Mr Makasa’s much shorter relationship with his current partner, which involves only cohabitation since January of this year, as demonstrating the irrelevance of this aspect of the test result.
  17. Without regard to the contentious events of the evening of 30 August 2006, we accept that the risk of Mr Makasa engaging in the future in harmful conduct is probably low. His period of imprisonment was mostly spent in protective custody, because of the nature of the offences involved. It was difficult to endure. That experience is likely to operate as a significant future deterrent. So too is the experience involved in the present visa cancellation process. Nevertheless Mr Makasa’s past offences, their diversity and the fact that the more serious offences were committed in mid 2006 at a time when he had recently entered into a good behaviour bond, do not encourage us to take the view that Mr Makasa’s risk of engaging in the future in either “serious criminal or other harmful conduct” is so low that it does not warrant serious consideration. On the contrary we consider that the evidence establishes a real risk that, in the uncertain future Mr Makasa faces in Australia, he may engage in conduct that is potentially seriously harmful. We take that view principally because we consider that the circumstances of his offences in 2006 evidence a lack of real commitment to lawful behaviour. Whilst Mr Makasa may now espouse appropriate values, his past conduct evidences a lack of real commitment to them. We are unpersuaded that his more recent experiences have so changed his attitudes as to override the apprehensions generated by his past conduct.
  18. In paragraph 101 above we foreshadowed our view that the proper exercise of the visa cancellation power does not require an explicit finding in relation to the events of 30 August 2006. We now set out our reasons for that view.
  19. The primary protective consideration mandated in Ministerial Direction 41 involves an impressionistic assessment of the risk of future harmful conduct. The considerations relevant to the proper assessment of that risk include the person’s “general conduct”: see Ministerial Direction 41 cl 10.1.2(1). They are not confined to instances of proven criminality. Neither are they limited, despite the use of terms such as “repeated” and “re-offending” (see Ministerial Direction 41 cl 10.1(2)(b) & 10.1.2), to apprehended repetition of precisely the same kind of offences as those involved in the person’s convictions. They include any apprehended harmful conduct in relation to which there is a rational and reasonable basis for apprehending a relevant degree of risk of the person’s causal involvement. This kind of assessment is not amenable to clear and cogent evidentiary proof. It is a matter of impression.
  20. We have set out earlier summaries of the complainant’s evidence, Mr Makasa’s evidence and the evidence of Mr Makasa’s house mate (Mr Chinyani). The evidence of the complainant and Mr Chinyani, when taken together, place Mr Makasa and his co-accused in his bedroom at a time when the girl said intercourse occurred, and Mr Chinyani heard sounds consistent with her claims. Furthermore Mr Chinyani’s evidence established (if accepted) that some of those sounds followed shortly after he gave Mr Makasa condoms. None of this evidence necessarily established that Mr Makasa himself had sexual intercourse with the young girl on the evening of 30 August 2006. Nor did it necessarily establish, despite the young girl’s claims, that the intercourse was non-consensual or that Mr Makasa and his co-accused knew the girl was only 15 years of age. But we do not consider that the relevant considerations in assessing the risk of harmful conduct are confined to the necessary effect of the contentious evidence. We consider that the relevant considerations include reasonable apprehensions about the extent of the person’s involvement in serious criminal conduct. And the contentious evidence about the events of the evening of 30 August 2006 certainly provide a reasonable basis for apprehensions that Mr Makasa not only had sexual intercourse with the girl that evening, but also encouraged his co-accused to have intercourse with her as well.
  21. Characterising these apprehensions as reasonable does not elevate mere accusations to a level where they justify significance in the exercise of the visa cancellation power. The evidence disclosed much more than mere accusation by the girl. Her age was uncontested. So too was the fact that she spent the night in Mr Makasa’s bed. The jury and the sentencing judge both accepted the probability that intercourse occurred in Mr Makasa’s bedroom. The likelihood that it occurred during the night, and in the presence of the three co-accused, was enhanced by Mr Chinyani’s evidence. We consider it is necessary to approach the exercise of the visa cancellation power on the basis of a real risk that Mr Makasa was culpably involved in the sexual intercourse that occurred on that night. We also consider that there is a real risk Mr Makasa’s culpability involved intercourse with a non consenting young girl and that it also involved intercourse in circumstances where Mr Makasa did not honestly and reasonably believe that the girl was at least 16 years of age.
  22. Reasonable apprehension of what occurred on the evening of 30 August 2006 does not necessarily translate into unacceptable risk of future harmful conduct by the person concerned. But in the present case the reasonably apprehended conduct is that of serious co-operative criminality against a young girl. And, in Mr Makasa’s case it was followed by repeated instances of unlawful sexual intercourse the following day. These considerations suggest to us a real risk that Mr Makasa, despite his espousal of appropriate values, lacks the control and determination to behave reliably and consistently in accordance with those values. That suggestion is consistent with the view we earlier expressed when, without taking into account the contentious events of 31 August 2006, we addressed Mr Makasa’s risk of engaging in the future in serious criminal or other harmful conduct.

PERSONAL CIRCUMSTANCES

  1. Mr Makasa was 18 years old when he came to Australia in 2000. His mother lives here, and has been an Australian citizen since 2006. Mr Makasa lived with his mother from November 2001 until early 2003, when he commenced his relationship with his former partner. He lived with his mother during his release on bail between February 2008 and August 2009, and again from October 2010 until January 2011, following his release from custody after the Court of Criminal Appeal decision.
  2. Mr Makasa’s younger sister came to Australia in 2003, after completing her secondary education in Zambia. She lived with Mr Makasa, at least for a time, in the house he shared with his former partner. She now lives in Adelaide. Mr Makasa says they talk on the phone. His sister gave no evidence in the present proceedings.
  3. In the approximately five year period between November 2001 and August 2006, Mr Makasa undertook a diploma course in information technology course at the University of Technology and started a started a diploma course in accounting. He obtained his information technology diploma in 2003. Whilst studying that course he worked part time as a nursing assistant at an aged care facility. He also worked part time as a technician in the sterile supply department of a private hospital.
  4. Mr Makasa began his accounting course in 2005, after being unable to find employment using his information technology qualifications. He discontinued the course in early 2006 because of financial pressures. After that he continued to work at the nursing home and the private hospital. During his release on bail in 2008 and 2009 Mr Makasa completed a fork lift driver’s course. For some of that time he had a job in a warehouse as a fork lift driver. If he is able to stay in Australia he intends to complete his accounting course.
  5. Mr Makasa expresses great admiration for his mother. Mrs Makasa gave evidence in these proceedings. She is an articulate, intelligent and impressively thoughtful woman. She described her initial condemnation of her son for his asserted involvement in the events about which the young girl complained. But she described how she had made the decision to support her son deal with the situation with which he was confronted. She said she visited and telephoned him regularly when he was in jail and deliberately maintained a close connection with him. She was aware of his weakness for alcohol, and felt that it had contributed to his involvement in the offences for which he was convicted. However that was an issue that she had addressed with him. She was confident that it would not be a factor in his future life.
  6. Mrs Makasa indicated that her support for her son was not just a matter of maternal devotion. She described that when he had first applied for bail she had refused to become involved in supporting the application, because she was not really confident about his likely behaviour. But over time, as a result of her regular contact with him she became satisfied that she could support his initial release on bail, in March 2008. Mrs Makasa expressed the view that her son had a valuable role to play in the community as a tangible inspiration to other young people who faced difficult challenges and were at risk of lapsing into criminal behaviour. She expressed her continued willingness to support him.
  7. Mrs Makasa’s positive views about her son’s more recent conduct, and his future prospects were supported by other evidence. Mr Waininau is a pastor of the Hillsong Church. He met Mr Makasa when he was in custody at Long Bay gaol. He has had regular contact with him in the intervening period. He described very positive changes in Mr Makasa’s outlook, including a real religious commitment. Mr Waininau said Mr Makasa had displayed great personal growth and was strongly supported and encouraged by his mother. He declared his satisfaction that Mr Makasa would do his utmost to live well in the future and not come into future conflict with the law.
  8. The father of Mr Makasa’s current partner provided a letter in February this year, apparently in support of Mr Makasa’s response to the Minister’s January 2011 notice of intention to consider cancellation of his visa. In the letter Mr Makasa’s partner’s father said that Mr Makasa now lived in the family home, and that he found him to be a trustworthy, honest and helpful person.
  9. We recognise the positive endorsements of Mr Makasa that are contained in this evidence. The evidence of Mrs Makasa and Mr Waininau do describe positive changes in Mr Makasa’s outlook and behaviour since the events of August 2006. But we are not confident that the changes are so complete as to outweigh apprehensions about the risks we regard as generated by his past behaviour.
  10. Mr Makasa says he would be shattered if he was returned to Zambia. He left the country in 2001 after he finished his secondary schooling. Before that he lived first with his aunt (after his mother came to Australia in 1997) and then at boarding school. He said he had not had any contact with his aunt since he came to Australia.
  11. We accept that Mr Makasa’s life in Zambia was limited to his school years. We also accept that he has had little contact with his relatives there since he came to Australia. But he has many aunts and uncles who still live in Zambia. Mrs Makasa explained that she had 11 siblings, 10 of whom, ranging in age from 30 to 60, still lived in Zambia. Seven of them had employment. Four of them lived in a former industrial town about 60 kilometres from Lusaka. Mrs Makasa did not have regular contact with all of her siblings. She had email contact with two of them, and kept in touch with the family happenings in that way. Mrs Makasa explained that the economic situation in Zambia was very poor. Nevertheless she agreed that the family members still in Zambia, with the exception of one sister who tended to live her own life, were on good terms with one another and could reasonably be expected to support other family members, at least to the extent that their limited means allowed. She thought however that direct financial assistance would be out of the question. She had not discussed with her siblings the prospect of Mr Makasa being returned to Zambia. She said it would be a big burden to expect any of them to receive him in any way, because they were struggling with their own families.

CHILDREN AND PERSONAL RELATIONSHIPS

  1. We have referred earlier to Mr Makasa’s relationship with his former partner. They met in 2002 and began living together in 2003. After a period of about 12 months separation, probably from some time in late 2004, they lived together again until June 2006. That was just after the birth of their daughter. Following their daughter’s diagnosis with Downs Syndrome, and partly as a result of his partner’s disenchantment with living in Sydney, and financial difficulties, she returned to Perth to live with her parents. Mr Makasa said they had planned that he would stay in Sydney for a time, to pay off a credit card debt, but that he would join his partner in Perth in November 2006.
  2. Between September 2006 and February 2008 Mr Makasa was in custody in Sydney. He was released on conditional bail between February 2008 and August 2009 (except, perhaps, for a short period around the time of his third aborted trial in about August 2008). He originally claimed (in his 18 September 2011 affidavit) that he had visited his partner and daughter in Perth fortnightly during 2008. This claim is not likely to be accurate. Mrs Makasa, with whom he was living in Sydney whilst he was on bail in 2008, thought that there were no more than five occasions when her son travelled to Perth. These included two occasions when he stayed there for periods of between two and three weeks.
  3. Mr Makasa said in his affidavit evidence that he separated from his former partner in the latter part of 2008, partly because of the uncertainty of the unresolved offences with which he had been charged, and the difficulties of being forced to live apart. He claimed nevertheless that they remained on good terms and had stayed in close contact because of his daughter, and later his son. His son was born in August 2009, and must therefore have been conceived in late 2008, at about the time Mr Makasa’s relationship with his former partner ended.
  4. Mr Makasa claims that his relationship with his two children is very important to him. His own father died when he was very young, and he has no memory of him. He does not want his children to have the same experience. He claims to have made efforts to visit his children in Perth as much as he has been able. He also claims to have very frequent telephone contact with them. This claim is partly corroborated by his former partner. She said in a letter she wrote in March 2011 that he telephoned about every other day to talk to the children. She described him as having a good relationship with the children. Mrs Makasa also described her son as having a good relationship with the children.
  5. These adjectival descriptions of Mr Makasa’s relationship with his children rather tend to obscure the reality that his direct physical contact with them has been very limited. In 2008, during the period when he was on bail, he visited Perth on perhaps five occasions, and only twice for a period of more than a few days. At that time his daughter was only two years of age. Since the latter part of 2008 and his partner’s letter of March 2011, he visited Perth once. That was to attend his son’s naming ceremony in about August 2009. His next visit appears to have been in May this year when he stayed for a weekend.
  6. Mr Makasa’s infrequent, and in reality, very limited direct personal contact with his children in Perth must detract from the potential significance of their interests, and the hardship he would suffer, in the exercise of the cancellation decision. His continued telephone contact with them is at least technically feasible from Zambia, if he was required to return there. His return would, in practical reality, preclude him seeing them in Perth again. We accept that this is very considerable hardship that would be imposed on both them and him. But we doubt that his direct physical contact with them is likely to be anything other than occasional, even if he remained in Australia.
  7. Mr Makasa has contributed financially to the support of his children in Perth. His incarceration and subsequent lack of employment mean that those contributions have been modest, and their real extent is unclear. He claimed his average weekly contribution was about $100. This was supported by his former partner’s letter of March 2011. She said this contribution was a significant help to her.
  8. The present modesty of Mr Makasa’s financial contribution to his children’s welfare does not preclude it being a significant consideration in assessing the potential impact upon them of his return to Zambia. The more limited their present circumstances the more significance his otherwise modest contribution would have. Moreover, the present modesty dictated by his current situation may improve. Conversely, it is problematic whether it would even continue, let alone increase, if he was returned to Zambia.
  9. But the evidence in these proceedings does not disclose any specific information about the real circumstances of Mr Makasa’s children in Perth. The reason why his former partner returned to Perth was to live with her parents. It is reasonable to assume that support is still available to her. That matter, and the full extent of the children’s present and prospective circumstances are matters that could usefully have been revealed by Mr Makasa’s former partner. She was required for cross examination by the Respondent, but she did not make herself available. The Respondent submitted that the Tribunal should draw from her unexplained unavailability an inference that nothing she might have said would have been likely to support Mr Makasa’s application in these proceedings. We do not consider that inference should be drawn. There is no reason to suppose that the former partner would have disavowed the contents of her March 2011 letter. Its contents do support, in a limited way, Mr Makasa’s claims.
  10. But the contents of the former partner’s March 2011 letter are limited. This in itself is significant. If Mr Makasa’s prospective forced return to Zambia was really likely to have, in his former partner’s view, a significant adverse impact on the children’s welfare, we would have expected that some such statement would have been forthcoming from her. The absence of such a statement deprives us of any significant evidentiary basis for concluding that the children’s welfare would be materially adversely affected by cancellation of Mr Makasa’s visa.
  11. We recognise that the interests of the two children in Perth do include knowledge of and familiarity with their father. As the children develop, their potential to benefit from the love and supportive affection of a caring father is real and significant. But, substantially because we think it is unlikely he will have anything more than irregular occasional visits to the children, we are sceptical of the extent to which Mr Makasa would be realistically likely to provide that supportive affection in the children’s developing years. His predominant contact with the children for the foreseeable future, even if he was to remain in Australia, is likely to be by telephone or the internet. That kind of contact can continue even if Mr Makasa has to live in Zambia.
  12. Mr Makasa has a current relationship with a young woman aged 23. She met Mr Makasa in early 2009. They started a dating relationship in April 2009. She described their relationship as very close. She was very upset when he was returned to prison following his sentencing in August 2009. She became depressed and was prescribed antidepressant medication. She visited him at least once a week when he was in prison between August 2009 and his eventual release in October 2010. In January 2011 Mr Makasa came to live with her in her parents’ home. He lived there until he was placed in immigration detention in July 2011. She has visited him regularly whilst he has been in detention.
  13. Mr Makasa’s current partner is very supportive of him, and very appreciative of his support of her. She says he makes her feel positive and happy. She would be devastated if he was returned to Zambia.
  14. Mr Makasa’s current partner has a six year old daughter. She is said by her mother to enjoy spending time with Mr Makasa. When he was living with the family, in the early part of 2011, he would often talk and play with her daughter and help her with her reading. She characterised him as being like a father figure to her daughter, conceding that this could only realistically apply to the limited period when they lived together.
  15. Mr Makasa said he hoped to continue his relationship with his current partner. He also characterised his relationship with her daughter as paternal like. He said he contributed to their expenses and that the three of them tried to be as independent as possible so as not to burden her parents.
  16. Mr Makasa’s relationship with his current partner does appear to be a positive influence. But it is, in reality, of relatively recent origin and short duration. The prospect of its survival, and continued positive impact on his life, is not predictable with any real confidence. And in this context we bear in mind both the history of his relationship with his former partner and the aspect of the psychologist’s report we referred to in paragraph 117 above.

AFFIRMATION OF THE VISA CANCELLATION DECISION

  1. The cancellation of Mr Makasa’s visa, and his return to Zambia, will likely end his relationship with his current partner. It will deprive him of the ability to visit his children. It will likely attenuate their relationship, even if he is able to maintain connection with telephone contact, electronic communication and correspondence. It will remove him from immediate contact with his mother, and further distance him from his younger sister. It will return him to a country which is both the country of his birth and where he obtained his primary and secondary education. It is also a country where he still has genuine, numerous and potentially supportive family connections. But we recognise that it is a country where his means can be expected to be limited, and his opportunities far less than they might be if he remained in Australia.
  2. His return to Zambia will involve significant hardship to Mr Makasa, and those who care for him - especially his mother and his current partner. They will also potentially involve an element of hardship to his children, although to an extent that is difficult to determine. This hardship, both actual and potential, is a weighty consideration.
  3. But we have concluded that the primary consideration of protection of the Australian community has to be assessed in the light of both the seriousness of the criminal conduct that Mr Makasa has displayed in Australia, and also our view that there is a real risk of his re-offending in a serious way in the future. We have already acknowledged that the risk is probably low, but having regard to the nature of his past offences, and our view that what underlay them was a disregard of community values of which he was probably well aware, we do not consider that this risk is one that the Australian community should be required to bear.
  4. In coming to this conclusion we have given particular weight to the other material primary consideration, the best interests of Mr Makasa’s two children, and his current partner’s daughter. All three of these children will remain in Australia in their current environments which includes at least one of their natural parents and that parent’s family. To those environments Mr Makasa has made a limited contribution. His prospective future contact with his natural children is likely to be limited, at least for the foreseeable future. The real extent of his significance to his current partner’s daughter is problematical, given the short period of their close contact. We do not regard these considerations, involving the interests of these children, as outweighing the significance of the protective considerations mandated by Ministerial Direction 41.

DECISION

  1. The decision under review is affirmed.

I certify that the 155 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member & Mr P Taylor SC, Senior Member.

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

Casey Comans, Associate

Dates of Hearing 27 & 28 September 2011

Date of Decision 18 October 2011

Counsel for the Applicant Mr Awais Ahmad

Solicitor for the Applicant Mr Grant Mason, Corrs Chambers Westgarth

Counsel for the Respondent Naomi Sharp

Solicitor for the Respondent Will Sharpe, Sparke Helmore

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