Vuni and Minister for Immigration and Citizenship [2011] AATA 759 (27 October 2011)

Last Updated: 13 January 2012

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/3270
GENERAL ADMINISTRATIVE DIVISION )

Re: Poango Vuni
Applicant

And: Minister for Immigration and Citizenship
Respondent

CORRIGENDUM TO DECISION [2011] AATA 759

TRIBUNAL: Senior Member A K Britton

DATE: 13 January 2012

PLACE: Sydney

1. The Tribunal released written reasons for decision in this matter, dated 27 October 2011.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975 (the Act).

NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the decision as follows:
(a) Replace the words “Mr Vuni has not a long history of alcohol and drug use” in paragraph 11 of the Reasons for Decision with the words “Mr Vuni has a long history of alcohol and drug use”.

.............................................................

Senior Member A K Britton

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/3270

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Poango Vuni

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 27 October 2011

Place Sydney

Decision

The decision under review is affirmed.

......................[sgd]......................
Senior Member A K Britton

CATCHWORDS

MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – decision under review affirmed

Migration Act 1958 (Cth) – ss 499, 500(6L), 501

Direction [no. 41] – Visa refusal and cancellation under s 501

Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91

REASONS FOR DECISION

27 October 2011 Senior Member A K Britton

1. Tongan citizen, Mr Poango Vuni, challenges the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa. He is 56 years of age and currently serving a custodial sentence for manslaughter.
2. Mr Vuni does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (the Act). The issue to be decided is whether the “correct and preferable” decision is to exercise that discretionary power and cancel Mr Vuni’s visa. In making that decision, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.

FACTORS RELEVANT TO THE EXERCISE OF POWER TO CANCEL MR VUNI’S VISA

3. The Direction lists four “primary” and a number of “other” considerations that must be taken into account in deciding whether the power to cancel a person’s visa should be exercised. Set out in cl 10(1) of the Direction, the primary considerations are:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

PRIMARY CONSIDERATIONS

(A) PROTECTION OF THE AUSTRALIAN COMMUNITY

4. Factors relevant to assessing the risk of harm to the community of Mr Vuni’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.

(i) Seriousness and nature of the conduct

5. Mr Vuni has been convicted of a number of criminal offences characterised by the Direction as “serious”. These include the offence of manslaughter, for which he is currently serving a 10-year custodial sentence, and the offences of assault, assault occasioning actual bodily harm and malicious wounding.
6. Mr Vuni’s criminal history reveals a pattern of regular offending commencing in 1990 and escalating in intensity and frequency in the late 1990’s. His most recent offence was committed in February 2004 while Mr Vuni was on remand for the charge of murder. He has been imprisoned since that date.
7. While not clearly put, as I understand it Mr Vuni contends that in assessing the seriousness of the subject offence, his belief that he was acting in self-defence should be seen as a mitigating factor. He claims that he was fearful that the victim who came to his house demanding assistance to recover weapons from a third person would harm him and/or his family. Mr Vuni was found not guilty of murder but guilty of manslaughter. The trial judge found that the basis of the jury’s verdict was that Mr Vuni had acted in “excessive self-defence” and that his actions had been “extremely unreasonable”. I do not think that Mr Vuni’s subjective belief about the threat posed by his victim, reduces the severity of the offence, given that it was taken into account in the decision to enter a conviction for the lesser charge of manslaughter.
8. There can be no argument, given the serious nature of the offences Mr Vuni has committed — particularly the offence of manslaughter and those involving violence — that taken overall his “relevant conduct” can only be seen as most serious.

(ii) Risk that the conduct might be repeated

Previous general conduct

9. There is no evidence to suggest that prior to the first offence for which he was convicted Mr Vuni was other than of good character.
10. Since the commencement of his current period of incarceration in March 2003, Mr Vuni has breached prison rules on numerous occasions but has not been convicted of any offence or reported to be involved in any violent conduct. Recent reports indicate a demonstrable improvement in Mr Vuni’s behaviour. There are a number of positive reports to the effect that he is a good worker with a strong work ethic.

Evidence of rehabilitation

11. Mr Vuni has not a long history of alcohol and drug use. He has not undertaken any structured rehabilitation to address that use or his violent conduct. In 2009 he participated in, but failed to complete, “Getting SMART”, a substance abuse program, because his literacy skills were considered to be insufficient. Earlier this year, the NSW Serious Offenders Assessment Unit considered that Mr Vuni was unable to undertake the Violent Offenders Therapeutic program (VOTP) because of “responsivity [sic] issues in the areas of mental health, literacy and communication”.
12. Mr Vuni has completed a number of short vocational courses while in prison. He has also undertaken some language and literacy courses however recent assessments reveal that his proficiency in written and spoken English remains poor.
13. Mr Vuni was eligible for parole in September 2010. In July 2011 the Serious Offenders Review Council, an independent statutory authority, decided that he should not be released on parole noting in a report dated 7 July 2011 that he “can presently be viewed as [a] risk to the community”. On review that decision was upheld.

Expert opinion on recidivism

14. Mr Vuni was assessed by Ms Toni Quayle, a psychologist employed by the Serious Offenders Assessment Unit. In a detailed report dated 9 March 2011, Ms Quayle concluded that, without treatment, Mr Vuni’s risk of general and violent reoffending fell at the lower end of the medium-high range.
15. Ms Quayle noted that alcohol appeared to have played a role in many of Mr Vuni’s crimes, although not the manslaughter offence. On her account, his Justice Health files revealed that concerns have been expressed about his mental health while in custody. She noted a “history or presentation of late onset paranoid schizophrenia with auditory hallucinations and a formal thought disorder”. In interview, Mr Vuni disclosed to Ms Quayle that he frequently heard voices. She recommended a further mental health assessment and concluded that Mr Vuni will struggle to understand or address his offending conduct until his mental health problems are clarified.
16. Ms Quayle identified the following factors which in her opinion increased Mr Vuni’s risk of reoffending:
    • His long history of violent offending
    • A disrupted childhood and separation from his mother in his mid-teens
    • Limited educational and vocational skills – a recent assessment revealing his English literacy skills to be around the early primary school level
    • Impulsivity – she noted that Mr Vuni had a tendency to use violence in response to the “disrespect of others”
    • Limited insight – Ms Quayle thought that Mr Vuni had a tendency to blame his conduct on his victims, for failing to respect him or members of his family
    • Poor emotional self-regulation – according to Ms Quayle, while there was some evidence that Mr Vuni tried to talk through problems, if this failed he generally resorted to violence
    • Marijuana use – Mr Vuni’s reported history of “regular and significant” marijuana use, according to Ms Quayle, probably contributed to his risk of non-violent offending and “criminal lifestyle”
    • Alcohol use – Ms Quayle thought that this represented an “acute” risk factor which increased Mr Vuni’s risk of violent behaviour
17. Ms Quayle considered, however, that there were some factors protective of further risk, including Mr Vuni’s supportive family and strong work ethic.
18. Ms Quayle recommended that Mr Vuni be “intensively monitored after release” and referred to a psychologist for ongoing support. She also recommended that his family be advised of his areas of potential risk and the signs to be aware of.

Evidence of breaching judicial orders

19. Mr Vuni has a poor history of compliance with judicial orders. He has been convicted on three occasions for driving while disqualified and twice for other offences while on a good behaviour bond. His most recent offence — break, enter and steal — was committed while on remand for the charge of murder.

PROTECTION OF THE AUSTRALIAN COMMUNITY: FINDINGS AND CONCLUSIONS

20. The primary consideration of the protection of the Australian community requires an assessment of both the seriousness of Mr Vuni’s offending conduct and the risk that it might be repeated.
21. Mr Vuni has a long criminal history which includes many offences, including manslaughter, listed as “serious” by the Direction.
22. In assessing the risk that Mr Vuni might reoffend, it is necessary to have regard to the “highly relevant” and “particularly relevant” factors set out in subcll (1) and (2) of cl 10.1.2: Minister for Immigration & Citizenship v Toma [2011] FCA 91; (2011) 191 FCR 362 at 372-373.
23. The following factors, in my opinion, suggest that Mr Vuni poses a real and material risk of reoffending. First, he has a 25-year history of frequent and violent offending. There is no evidence to indicate that this troubling pattern has been moderated by custodial sentences. Second, he has a long history of heavy alcohol abuse and alcohol fuelled violence. Third, he has not undertaken any substantive rehabilitation program and nor is there any real prospect that he will be given that opportunity in the foreseeable future. Fourth, he has what can only be described as an appalling history of compliance with judicial orders. Fifth, the expert opinion is unequivocal: he poses a moderate to high risk of reoffending.
24. Mr Vuni's previous good conduct and those factors identified by Ms Quayle as protective of further reoffending do not in my opinion moderate his risk of reoffending to any significant degree. The seriousness of his offending conduct together with the real and material risk he poses of reoffending leads me to conclude that the protection of the Australian community weighs heavily against Mr Vuni in the assessment of whether his visa should be cancelled.

(B) AGE WHEN BEGAN LIVING IN AUSTRALIA

25. Mr Vuni arrived in Australia 16 days before his eighteenth birthday. Under the Direction, favourable consideration is to be given where a person was a minor when they began living in Australia. However the Direction also instructs that less weight is to be given if the person began living in Australia close to attaining adulthood.
26. This consideration weighs in Mr Vuni’s favour, but given that he was nearly an adult when he commenced living in Australia, only to a small extent.

(C) TIME RESIDENT IN AUSTRALIA

27. Under the Direction, “Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: cl 10.3(1).
28. Mr Vuni has resided in Australia for close to 40 years. He lived in Australia for about 18 years before committing the first offence for which he was convicted. He has significant family ties with Australia. This Consideration weighs heavily in Mr Vuni’s favour.

(D) THE BEST INTERESTS OF THE CHILD

29. Mr Vuni contends that it is in the interests of his step-granddaughter that he not be deported. In a number of documents, he described the child as his daughter but in these proceedings confirmed that she was his partner’s granddaughter. The child lives with Mr Vuni’s partner and her daughter (the child’s mother) for about half the week; and the balance of the week with her father.
30. The child was about 18 months of age when Mr Vuni commenced his current custodial sentence. Mr Vuni claims that his partner and the child visit him every second weekend, however the Department’s records reveal less frequent visits. In a recent interview with an officer of the Department of Immigration and Citizenship, Mr Vuni’s partner stated that the child speaks to Mr Vuni most weekends by phone. She also stated that the child and Mr Vuni love each other and get on well. He was present at the child’s birth.
31. There is no issue that the child will remain living with her biological parents (on a shared basis) regardless of whether Mr Vuni is deported. Mr Vuni has not played a parental type role vis-à-vis the child and nor is there any suggestion that he will do so if he remains in Australia. It is unknown whether the child knows of, or has expressed an opinion about, Mr Vuni’s possible deportation. At its highest, the evidence suggests that if Mr Vuni were to be deported, the child would lose the opportunity to have reasonably regular contact with Mr Vuni, whom she loves, and is loved by. To that limited extent it is in the child’s interest that Mr Vuni retain his visa. Nonetheless, the child’s interests are required to be assessed against the factors listed in paragraph (5) of cl 10.4.1. While non-exhaustive, those factors indicate that the primary focus of the Consideration is the effect of deportation on the continuation and maintenance of a parent-child relationship. While parental-type relationships may take many forms, Mr Vuni’s relationship with his step-granddaughter falls well short of what could reasonably be regarded as a parental-type relationship. The child has never been in Mr Vuni’s care or custody and there is no evidence that he has provided the child or her parents with any financial or emotional support. Given the limited role he has played in the child’s life to date and the likelihood that even if he were to remain in Australia he would not take on a parental-type role, the extent to which this factor weighs in Mr Vuni’s favour, in my opinion, is negligible.

OTHER CONSIDERATIONS

32. The Direction lists a number of “other considerations” that must be taken into account, if relevant. The Direction instructs that they should generally be given less weight than the primary considerations: cl 11(2).

DE-FACTO RELATIONSHIP

33. Mr Vuni has been in a de-facto relationship with his current partner for over 15 years and in custody for about ten years of that relationship. Apart from a short period when he was incarcerated some distance from her home, Mr Vuni’s partner has visited him on a regular basis. If not deported, Mr Vuni intends to return to live with his partner and her family.
34. There is no evidence as to whether Mr Vuni’s partner intends to follow him to Tonga if he is to be deported.

FAMILY TIES TO AUSTRALIA

35. Mr Vuni’s partner lives with her daughter and two grandchildren. On Mr Vuni’s account, his partner has 15 nieces and nephews and 10 cousins with whom she is in regular contact.
36. In addition to his partner’s family, Mr Vuni claims that some members of his family live in Australia but does not know their contact details or where they lived. It is unclear what, if any, contact he has had with members of his extended family throughout his most recent period of incarceration.

OTHER TIES TO AUSTRALIA

37. Apart from familial ties, there is no evidence of Mr Vuni having any other significant ties with Australia. He has no business or employment links. There is some evidence that he had a small circle of friends but no evidence that he has maintained contact with any throughout his period of incarceration.

AGE AND HEALTH

38. Mr Vuni is in his mid-50’s. He is in good physical health. As noted, Ms Quayle believes that he may suffer from a mental illness. He would probably find it more difficult to obtain a proper diagnosis and, if necessary, receive treatment in Tonga.

LINKS TO TONGA

39. Mr Vuni’s parents are no longer alive and the evidence about whether any members of his family remain living in Tonga, is limited. He testified that about 17 years ago he returned to Tonga to visit his then 67-year-old uncle and “everyone else”. He claims not to have maintained contact with his uncle or any other family members in Tonga.

HARDSHIP LIKELY TO BE EXPERIENCED BY MR VUNI

40. If Mr Vuni were to be deported he is likely to suffer the hardship of being separated from a partner who has stuck by him throughout his extended time in custody. It can be inferred from the fact that Mr Vuni’s partner has visited him in custody for close to a decade that they have a strong relationship. He would also suffer the hardship of returning to a country where he has not lived for close to 40 years and now has limited ties.

HARDSHIP LIKELY TO BE EXPERIENCED BY MR VUNI’S FAMILY MEMBERS RESIDENT IN AUSTRALIA

41. Mr Vuni’s partner would probably suffer significant emotional hardship if he were to be deported.

EDUCATION

42. Mr Vuni was educated to secondary school level in Tonga. He claims to have completed a year of schooling after his arrival in Australia. He has no formal qualifications apart from a number of occupational certificates obtained while in custody.

NOTIFICATION OF POSSIBLE DEPORTATION

43. Mr Vuni was not notified that his criminal conduct might result in his visa being revoked, prior to the decision the subject of this review.

DECISION

44. In deciding whether to exercise the discretionary power to cancel Mr Vuni’s visa, I must take into account both the “primary” and “other” considerations and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.
45. Three of the four primary considerations weigh in Mr Vuni’s favour, although only one — his lengthy period of residence in Australia — to any significant degree. Not surprisingly, given that he has lived in Australia for close to 40 years and apparently not maintained contact with any remaining family, he now has limited ties with his country of birth. If he were to return, family support is not guaranteed and Mr Vuni would probably be left to fend for himself. Coupled with his limited employment skills and possible mental health problems, this means it is probable that he will suffer significant hardship if returned to Tonga. These factors together with the emotional hardship both he and his partner would suffer, together with the interests of his step-granddaughter and his age on arrival in Australia, weigh in Mr Vuni’s favour.
46. The protection of the Australian community, however, must also be taken into account. It goes without saying that manslaughter is a most serious offence as are the other offences involving violence for which Mr Vuni has been convicted. The seriousness of the subject conduct is of course not determinative and the risk of reoffending must also be taken into account. In Mr Vuni’s case, the material before me gives me no comfort that that risk could be characterised as low or acceptable. Unfortunately, despite the recommendation made by experts that he undertake a structured rehabilitation program, he has been denied that opportunity because of, among other things, language difficulties. It is also most unfortunate, given the real possibility that Mr Vuni suffers from a mental illness which might play a role in his propensity to use violence, that a proper mental health assessment is yet to be undertaken.
47. I am troubled by the fact that Mr Vuni has apparently given no thought to the recommendation that he obtain some form of assistance on release to manage his alcohol use and propensity to use violence. It is telling that Ms Quayle thought that untreated, his risk of recidivism was of such concern that she recommended that his family be put on notice of that risk and be given advice on how to identify the warning signs of violent conduct.
48. Given what I believe to be the real and material risk that he might go on to commit another serious and violent offence, I have decided that the power to cancel Mr Vuni’s visa should be exercised despite the long period he has resided in Australia and the other factors that weigh in Mr Vuni’s favour.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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

Associate to Senior Member A K Britton

Dates of Hearing 11 and 12 October 2011

Date of Decision 27 October 2011

Applicant self-represented

Solicitor for the Respondent: L. Leerdam, DLA Piper