Funaki and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 1139 (5 November 2002)

DECISION AND REASONS FOR DECISION [2002] AATA 1139

And Minister for Immigration Multicultural and Indigenous Affairs

Decision The Tribunal affirms the decision under review.

IMMIGRATION - DEPORTATION - Refusal to grant subclass 050 bridging visa E - refusal to grant visa pursuant to section 501(1) Migration Act 1958 - discretion that the Tribunal may exercise if it finds that the Applicant is of good conduct - examination of the Applicant's past and present conduct including immigration misconduct - examination of the Applicant's criminal record - examination of the Applicant's migration status - necessity to consider the protection and expectations of the Australian community balanced against the best interest of the children - held that the Applicant does not have a substantive visa on foot - held that the discretion allowed to the Tribunal should not be exercised in favour of the Applicant - decision of the Respondent affirmed.

Migration Act 1958 ss 501, 501(1), 501G, 501(6H), 501(6)(c)

Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

1. This is an application by Falakiko Funaki ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 3 September 2002 to refuse the grant of a subclass 050 bridging visa E to the Applicant.

2. At the hearing, the Applicant represented himself and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 ("the G Documents"), together with the exhibits tendered by the Respondent. Oral evidence was given by Mr Funaki and his wife, Hepisipa Lavulo. The Tribunal denied Mr Funaki's request to call a number of other witnesses because, pursuant to s 500(6H) of the Migration Act 1958, no written statement from those witnesses had been given to the Respondent at least two business days before the hearing. Mr Funaki was told of this requirement on five occasions prior to the hearing.

3. The Applicant, Mr Funaki, was born in Tonga on 9 December 1968 and is aged 33 years. When he was aged about three, his parents moved to New Zealand. However, Mr Funaki remained in Tonga where he was cared for by his grandmother. In about 1984, when Mr Funaki was 15, he moved to New Zealand to live with his mother. In 1990, he commenced a de facto relationship with Hepisipa Sisifuka Finaulangi and, on 12 August 1992, their first child, Cecila Lavulo, was born.

4. At that time, Mr Funaki was using his father's family name Lavulo and it is this name which appears on Mr Funaki's and Ms Finaulangi's children's birth certificates and on Mr Funaki's and Ms Finaulangi's marriage certificate. They were married at Otahuhu, New Zealand on 22 September 1993. On 23 November 1993, their second child, Ana Lavulo, was born.

5. In November 1994, Ms Lavulo and the two children moved to Australia. On 7 July 1995, Mr Funaki came to Australia to attend his cousin's wedding and to visit his wife, entering on a subclass 676 visitor visa, valid for two weeks. This was extended onshore, and Mr Funaki returned to New Zealand on 9 August 1995. In November 1995, Mr Funaki returned to Australia illegally as a stowaway. On 8 April 1996, their third child, Solomone Lavulo, was born at the St George Hospital, Kogarah.

6. On 16 February 2000, Mr Funaki was arrested by Queensland Police and extradited to New South Wales to answer charges in the name of Mark Lavulo, whose stated date of birth was 20 December 1968. On 5 June 2000, he was convicted at the Downing Centre District Court of the offence "detain for advantage" and sentenced to 16 months imprisonment with a non-parole period of 12 months (G5). On 3 August 2000, at the Central Local Court, he was convicted of and sentenced for the following offences:

However, the sentences were served concurrently with the earlier conviction of 5 June 2002.

7. On 7 May 2001, Mr Funaki left Australia on the conclusion of his sentence. About a month later, he again entered Australia illegally as a stowaway. He remained illegally in Australia until detained by police on 12 June 2002 following a complaint of domestic violence by Ms Lavulo. Charges were not subsequently pressed. However, since then he has been detained pursuant to s 189 of the Migration Act 1958 ("the Act") at Villawood Detention Centre.

8. On 16 July 2002, Mr Funaki lodged a protection visa application (R1) which was refused on 9 August 2002 (R2). His application to the Refugee Review Tribunal ("RRT") was rejected on 25 September 2002 because the RRT was not satisfied that Mr Funaki is a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. Mr Funaki has not lodged any appeal in respect of this decision.

9. On 15 July 2002, Mr Funaki lodged an application for a subclass 050 bridging visa E. On 3 September 2002, a delegate of the Respondent refused the grant of a subclass 050 bridging visa E to Mr Funaki. On 11 September 2002, the Applicant lodged an application for a review of this decision with the Tribunal.

10. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

(a) the person has a substantial criminal record (as defined by subsection (7); ...

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

"Substantial criminal record" is defined in subsection (7) to include a person who "has been sentenced to a term of imprisonment of 12 months or more".

11. Schedule 1 of the Migration Regulations prescribes the requirements for the making of a valid subclass 050 bridging visa E application, and Schedule 2 of the Migration Regulations sets out the criteria relevant for the grant of such an application. Clause 050.21 requires that, at the time of making the decision, the applicant continues to satisfy the criteria as set out in 050.211 and 050.212, including that the substantive visa application has not been finally determined.

12. Mr Funaki said that his mother left him to be looked after by his grandmother at the age of three. His grandmother spoiled him and he thought he was a prince. At the age of about 16, he went to New Zealand to live with his mother. However, he did not get on well with her and eventually he left home and lived on the streets, ending up in prison. After being released from prison, he met his wife and they started living together in 1991. Their first child, Celia, was born in 1992 and they were married in 1993.

13. Because of the hard life they experienced in New Zealand, Mr Funaki and Ms Lavulo decided to move to Australia. However, while Mr Funaki's application for a visa was declined initially because of his criminal record, Ms Lavulo's application was granted and, in 1994, she moved to Australia with their two children. After Mr Funaki had visited Australia on a visitor visa in July 1995 and returned to New Zealand, he arrived in Australia illegally in November 1995, having stowed away on a ship. Thereafter, he lived with Ms Lavulo "on and off". He started doing security work in Kings Cross, became addicted to alcohol and cocaine and found himself with more problems.

14. In 1996, Mr Funaki's and Mr Lavulo's son, Solomone, was born. In 1997/1998, Mr Funaki committed the offence for which he was imprisoned in June 2000. He had been working for some Greek people who asked him to go with them to help them collect some money owed to them. When they asked the debtor to go with them to pay the money owing, the man became violent and Mr Funaki grabbed him and told him to go with them. However, the man escaped and went to the police. Mr Funaki was charged and advised by his solicitor to plead "Guilty" to the lesser charge of "detain for advantage". Mr Funaki also pleaded "Guilty" to the other charges heard in August 2000 on the advice of his solicitor. In both instances, Mr Funaki wanted to plead "Not Guilty".

15. When Mr Funaki was released from prison in May 2001, he paid for his own air ticket back to Tonga to avoid being deported. Ms Lavulo and the children did not wish to go with him. He had sought advice from a Migration Agent, Robert Bauk, who advised that he return to Tonga and apply for a visa to return to Australia from there. He was warned that this could take up to a year. However, after a few weeks back in Tonga, he missed his family so much that he stowed away on a ship and again re-entered Australia illegally.

16. Mr Funaki said that he did not know himself until he was in prison in 2000. While in prison, he undertook a number of courses including a Christian Fellowship course, a drugs and alcohol rehabilitation course, and an anger management course, together with career courses. As a result, he said he is a changed person. He repents of his past wrongs. He wants to make a fresh start and be with his family. They are all having a very difficult time, both financially and emotionally. He promises not to commit any further offences. He has taken his family to church and his children have been baptised into the Catholic religion.

17. Mr Funaki said he has not been employed since returning to Australia in June/July 2001, although he had been looking for work. He would look after the children while his wife was working and also take them to their various activities. When he was arrested, his wife had to stop work in order to look after the children. She is now dependent on a Social Security pension, and is expecting their fourth child in May 2003.

18. Mr Funaki said he was detained by the Police after he had an argument with his wife. It was a normal domestic argument but he was not violent and did not hit his wife, although she thought he might do so. Their children were at home at the time. He was taken to the Villawood Detention Centre. While there, he was advised by Departmental officers that the only visa he could apply for was a protection visa. His friend George Fonua also advised this. He acknowledged that on the hearing of his application at the RRT, he sought to rely on an additional ground, that of religion. He had been in trouble with his wife over being a womaniser. The Catholic religion does not permit divorce. If he was forced to return to Tonga, he was worried he might be tempted to womanise again.

19. Mr Funaki said that he started using the name Lavulo, his father's family name - Funaki is his mother's family name, because he thought that if he changed his identity it might help him to change. He made up the different date of birth.

20. Mr Funaki said that if he is only released for a few weeks, he will spend that time with his family doing what he can for them. They do not want to leave Australia and go with him to live in either Tonga or New Zealand. Mr Funaki's New Zealand visa expired in about 1997. He does not know whether he could get this renewed.

21. Ms Lavulo said she was born in Tonga and migrated to New Zealand with her parents when she was aged three. She became a New Zealand citizen and grew up there. She met Mr Funaki in 1990 through a friend of her younger sister. In about 1991, they commenced living in a de facto relationship and, in 1992, their first child. Celia, was born. Ms Lavulo said Mr Funaki decided to use the name Lavulo when they got married because this was his father's family name which appeared on Mr Funaki's birth certificate. They were married in 1993 when Ms Lavulo was pregnant with their second child, Ana. She has subsequently had a third child, Solomone, and is pregnant with a fourth child, due in the first week of May 2003. Ms Lavulo said Mr Funaki is a good father to his children - they adore each other. He truly loves them and he has never hurt them in any way.

22. Ms Lavulo said that at the time they decided to move to Australia, Mr Funaki was working as a concrete labourer and was also undertaking a course which required that he attend for another three months. He stayed in New Zealand to complete the course and apply for a visa for Australia. She moved with the two children to Australia. Initially, she wrote to him but they lost contact after a couple of months. She next saw him at his cousin's wedding in Auburn for which he had been able to obtain a visitor visa. He managed to get this extended for two additional weeks but then had to return to New Zealand. She later discovered she was pregnant.

23. In late 1995, Mr Funaki returned to Australia and went to live with his Aunty in Silverwater. He would visit Ms Lavulo and the children and occasionally stay overnight. He would especially spend time with the children when she was working. In 2000, he was arrested and commenced his 12 months in prison. On his release in May 2001, Mr Funaki returned to Tonga where he was going to apply for a visa for Australia. She next saw him in July 2001 when he came to her home. At that time, the children attended after school care while she was working and she also had help with them from his family who lived nearby. Ms Lavulo assumed that Mr Funaki had returned to Australia legally. They resumed their relationship. He continued to live with his Aunty in Silverwater.

24. Ms Lavulo said she ceased work in September 2001 because it was too far to travel for her as she had recently moved. In February 2002, she obtained another job. Mr Funaki would look after the children and occasionally stay the night.

25. Late one Friday in June 2002, Ms Lavulo and Mr Funaki had been arguing. She left her home at 1am on Saturday morning and went to stay with her Aunt, returning on Sunday afternoon. When she returned Mr Funaki left, then returned and they started arguing again. The children were outside at this time. She swore at Mr Funaki and said some nasty things about him. Things got out of hand and he hit her across the face. Ms Lavulo then left the house, taking the children with her to a Women's Refuge at Penrith. A person from the Refuge took her to the police station on the following Tuesday morning. The police asked her to make a statement about what happened. The Police then went to see Mr Funaki and, about six hours later, she was told that she could go to the house to collect her and the children's clothing. When she got to the house it was a mess - it had been searched by the police. It was then that she learned of Mr Funaki's arrest. Ms Lavulo said it was merely a domestic dispute - they do not have such disputes regularly.

26. Ms Lavulo said that her husband was taken to Villawood Detention Centre and she was not able to see him for two and a half weeks. She visits him with the children every weekend even though she cannot afford to do this. After Mr Funaki's detention, Ms Lavulo had to give up her job because she had no one to help her with the children and she also had to move out of her then house because she could no longer afford the rent. She is now receiving a Social Security pension. She can no longer afford extra things such as roller-skating for the children. While other family members in Sydney support her emotionally, they cannot afford to support her financially. She needs her husband's assistance - either his working or looking after the children. Ms Lavulo does not want to face having her husband return to Tonga. She questioned what would then happen to them as a family. She could not afford to move to Tonga or New Zealand and, anyway, the children love it in Australia and regard Australia as their home.

27. Ms Lavulo said her husband is a changed person since his imprisonment. He is responsible with the children, taking care of them while she is at work or helping her financially. He is also easier to communicate with, and has made genuine efforts to find work. Ms Lavulo said although Mr Funaki has never lived with her and their children in Australia, he has stayed overnight occasionally. They have worked to keep their relationship together. If he is released, she hopes he might move back in with them, but they would need to discuss this. She acknowledged that this could affect her Social Security pension but said that she would then be able to work. Even if Mr Funaki is released for a short time, it would be good to have him back with the family.

28. Mr Funaki asked the Tribunal to take into consideration submissions made on his behalf by George Fonua and lodged with the Tribunal on 30 October 2002. Mr Fonua submitted that the delegate wrongly failed to take into consideration the best interests of Mr Funaki's children, who are permanent residents and Australian citizens. To deport Mr Funaki would be contrary to the United Nations Declaration of the Rights of the Child which states that a child should, wherever possible, grow up in the care of its parents and that the family unit should be kept together. Moreover, it would be cruel and inhuman to deprive the children of the love, affection, warmth and security provided by their father.

29. Mr Funaki said, in the next few days, he will be preparing an application to the Respondent under s 417 of the Act in respect of humanitarian claims. He emphasised that he is a changed person and prepared to comply with any conditions imposed by a visa.

30. Mr Peek, for the Respondent, relied on his Statement of Facts and Contentions. He submitted that there are two issues for the Tribunal to determine. First, does the Applicant pass the character test under s 501(6) of the Act? Mr Peek said that Mr Funaki's criminal record alone precludes this. Secondly, should the Minister's discretion in s 501(1) be exercised in favour of Mr Funaki? Mr Peek submitted that the interests of the Australian community outweigh other considerations in this case. He noted the differences in the evidence given by Mr Funaki and Ms Lavulo, and that Mr Funaki's record includes a conviction for failure to appear. Moreover, Mr Funaki no longer has a substantive visa application on foot and any likely period of release would therefore be very short and would not permit him to work or enable him to provide the ongoing support needed by his wife.

31. The first issue for the Tribunal to decide is whether Mr Funaki passes the "character test" by reference to s 501(6) of the Act. As stated above, one of the grounds for finding that an applicant is not of good character is, pursuant to subparagraph (a), that the person has a "substantial criminal record", defined in subsection (7) as including being sentenced to a term of imprisonment of 12 months or more.

32. There is no dispute that, on 5 June 2000, Mr Funaki was convicted in the Downing Centre District Court of the offence "detain for advantage" and sentenced to 16 months imprisonment with a non-parole period of 12 months: he does not therefore, pass the character test. The Tribunal notes that Mr Funaki was convicted of other offences at the Central Local Court on 3 August 2000 and, on his own evidence, it would appear that he was imprisoned in New Zealand before coming to Australia. Thus, it is unnecessary for the Tribunal to consider the further ground for a finding that a person does not pass the character test, subsection (6)(c).

33. The second issue for the Tribunal to decide is whether to exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

34. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

35. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a), drug-related crime and, in subparagraph (c), serious crimes against the Act.

36. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

37. Before addressing the primary considerations, the Tribunal will make some general findings. First, the Tribunal notes that Mr Funaki has been convicted of a number of offences while in Australia. Based on his own evidence, it appears he may also have been convicted of other offences while in New Zealand prior to coming to Australia. The Tribunal also finds, based on Mr Funaki's evidence, that he has stowed away on a ship on two occasions in order to enter Australia and remain illegally. On the first occasion when, in late 1995, he stowed away on a ship from New Zealand, he thereafter worked without permission for a period of up to about four years before being detained by police on 16 February 2000. On the second occasion, when he stowed away on a ship from Tonga and entered Australia illegally in about late June/early July 2001, he did so having sought advice from a Migration Agent and being aware of the procedure whereby he could have applied for a visa for permanent residence from Tonga. He did this at a time when, according to his evidence, he was a "changed person" following his 12 months imprisonment.

38. The Tribunal finds Mr Funaki was not truthful in giving evidence concerning the domestic dispute which lead to his detention by police on 12 June 2002. The Tribunal finds Ms Lavulo's account of what happened to be more credible: that he hit her across the face following an argument in which, she admits, she provoked him by swearing and saying some nasty things about him. Following this, she took the children with her to a Women's Refuge at Penrith. Mr Funaki omitted to tell the Tribunal this. Indeed, he denied being violent or hitting her.

39. The Tribunal also finds that whilst Mr Funaki and Ms Lavulo seem generally to have maintained an ongoing marital relationship, that relationship has not involved Mr Funaki and Ms Lavulo living together since Ms Lavulo left New Zealand in 1994. While in Australia, Mr Funaki has lived with his Aunty and visited his wife and children regularly, occasionally staying overnight. Nevertheless, the Tribunal finds, based on both Mr Funaki's and Ms Lavulo's evidence, that Mr Funaki has a loving relationship with his children for whom he has undertaken caring responsibility on a regular basis.

40. The Tribunal finds, based on Mr Funaki's past history including that relating to June/July 2001, that there is a risk of his continuing to be involved in misconduct, whether migration misconduct or otherwise. The Tribunal notes that Mr Funaki's application for a protection visa has now been finally determined and that he has no substantive visa application on foot. If Mr Funaki were to be successful in obtaining the grant of a bridging visa E following these proceedings, it is unlikely that the duration of the visa would be more than a very short period of time given the requirements of the Migration Regulations in respect of subclass 050 visas, cited above. For this reason, it is also likely that the support that Mr Funaki might be able to provide his wife and the time that he would be able to spend with the children would be very limited.

41. Based on the above findings, the Tribunal concludes that Mr Funaki could pose a minor risk to the Australian community and, that there is a risk he may repeat past misconduct. The Tribunal also considers that the refusal of a visa could deter others from similar misconduct.

42. With regard to the second primary consideration, the expectations of the Australian community, in the light of Mr Funaki's criminal record and other misconduct, the Tribunal considers that the Australian community would expect that Mr Funaki would not be granted a bridging visa E: should he wish to seek permanent residence in Australia, he should apply for the appropriate visa in the normal way.

43. The third of the primary considerations to which the Tribunal is referred by Direction No 21 is the Best Interests of the Child. Mr Funaki has three children with Ms Lavulo: Celia aged 10, Ana aged 8, and Solomone aged 6. Ms Lavulo is also pregnant with their fourth child, due in early May 2003. The Tribunal notes the decision of the Full Federal Court in Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, at paragraph 32, where the Court identified the approach to be adopted where the best interests of a child are concerned. First, the decision-maker must identify the best interests of the child with respect to the exercise of the s 501(1) discretion and, secondly, the decision-maker must assess whether the strength of any other consideration, or the cumulative effect of other considerations outweighs the best interests of the child understood as a primary consideration.

44. Applying this approach, as is recognised in paragraph 2.15 of Direction No. 21, in general terms "the child's best interest will be served if the child remains with its parents". In Mr Funaki's case, he has lived apart from his wife and children since 1994 but visited regularly, often looking after the children while his wife was at work and taking them to their various activities. He also sometimes stayed overnight. The Tribunal accepts that he has a mutual loving relationship with his children and that his emotional and/or financial support is important to his wife. However, the granting of a bridging visa E to Mr Funaki for the very limited period that would be likely, would obviously not address the long term best interests of the children.

45. The second step that the Tribunal must take, following the approach in Wan (supra), is to assess the strength of any other considerations and whether they outweigh the best interests of the child. Before making this assessment, reference must first be made to the Other Considerations to which decision-makers are referred by paragraph 2.17 of Direction No 21. Where relevant, these Other Considerations may include: the extent of disruption to the non-citizen's family, business and other ties to the Australian community; genuine marriage to an Australian citizen or de facto or interdependent relationship with an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; the degree of hardship which would be caused to immediate family members lawfully resident in Australia; and the family composition of the non-citizen's family, both in Australia and overseas.

46. The Tribunal has no doubt that the removal of Mr Funaki from Australia would significantly disrupt his family in Australia. Although Mr Funaki and Ms Lavulo have been married since 1993 and had lived together in a de facto relationship since about 1991, they have not lived together since 1994 when Ms Lavulo left New Zealand to move to Australia. However, Mr Funaki visits regularly, looks after their children and sometimes stays overnight. It should be remembered that Mr Funaki spent 12 months in prison prior to his leaving Australia for Tonga on 7 May 2001.

47. The Tribunal accepts that hardship will be caused to Ms Lavulo and the children by Mr Funaki's removal from Australia, but notes that the grant of a bridging visa would only address this for a very short period. Finally, the Tribunal finds that Mr Funaki has family and contacts in Tonga. He said his New Zealand visa expired in about 1997 and he is not sure whether it can be renewed. Ms Lavulo and the children have dual Australian and New Zealand citizenship and could reside in New Zealand, although Ms Lavulo said they do not wish to do so because they regard Australia as their home. Nor do they wish to live in Tonga.

48. The final step is for the Tribunal to assess the strength of the primary considerations of the protection of and expectations of the Australian community, and the other considerations, and determine whether they outweigh the best interests of the children. In the Tribunal's view, Mr Funaki poses a minor threat to the Australian community or members of the community. As noted above, the Tribunal considers that the Australian community would expect that he not be granted a bridging visa. While the best interests of Mr Funaki's and Ms Lavulo's children are obviously of great importance, given the Tribunal findings and, in particular, that what is at stake here is a bridging visa likely to be of very limited duration, the Tribunal concludes that the protection and expectations of the Australian community should, in this instance, be given greater weight. The Tribunal therefore concludes that the s 501(1) discretion should not be exercised in favour of Mr Funaki and the decision under review should be affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

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

Representative for the Respondent Mr G Peek, Solicitor