Ruautu Tara v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Mr Ruautu Tara is a citizen of New Zealand born in 1973 and, therefore, 39 years old at the time of this litigation. He was born in the Cook Islands. He came to Australia in mid-2007 for a period of ten days and, in 2008, entered on a special class of visa available to New Zealanders which confers a right of residence. 2 Mr Ruautu Tara's visa has now been cancelled and he is presently in immigration detention awaiting, subject to the outcome of this litigation, removal from Australia. The decision to cancel his visa was initially made by a delegate of the Minister for Immigration and Citizenship ('the Minister') on 23 October 2011 and thereafter affirmed by the Administrative Appeals Tribunal ('the Tribunal') on 13 February 2012: Ruautu Tara v Minister for Immigration and Citizenship [2012] AATA 79. 3 Mr Ruautu Tara's visa was cancelled because he did not satisfy the character test established by s 501(6) of the Migration Act 1958 (Cth) ('the Act'); because that failure enlivened in the Minister (and his delegate) a discretion, although not an obligation, to cancel the visa under s 501(2); and because the delegate and later the Tribunal concluded that its appropriate exercise required cancellation. 4 Mr Ruautu Tara failed the character test because on 6 April 2010 he was convicted in the District Court of Queensland of sexual assault on a 17 year old girl. He was sentenced by McGinness DCJ to a period of imprisonment for 12 months. Her Honour required him to serve three months of this sentence but suspended the balance for a period of 12 months subject to his good behaviour. It followed, at least as a matter of form, that he had been sentenced to a term of imprisonment of 12 months or more (even though he only had to serve three months) with the consequence that he had a 'substantial criminal record' within the meaning of s 501(7) of the Act. A person with such a record does not pass the character test: s 501(6)(a). 5 As it happens this was not Mr Ruautu Tara's only brush with the law. The sexual assault to which the conviction of 6 April 2010 related had occurred on 25 October 2009. Between the time of that offence and his conviction therefor, Mr Ruautu Tara was also charged with a sexual assault on a young woman which was alleged to have occurred on 28 February 2010. Of this charge he was ultimately acquitted. 6 The complexities of this case emerge from the Tribunal's attempts to utilise some of the matters surrounding the offence of which he was acquitted in the exercise of its discretion under s 501(2). 7 The case was argued very ably on both sides with Mr Smith of counsel appearing for the Minister and Mr Poynder of counsel for Mr Ruautu Tara. 8 It is necessary to say something first of the Tribunal's hearing. During its review the Queensland Police Service ('the Police') had produced a bundle of documents to the Tribunal which, following pagination, became Exhibit R2. The bundle had included the Police's internal records concerning the alleged offence of which Mr Ruautu Tara had been acquitted. This contained a report which stated that prior to the incident the victim had met Mr Ruautu Tara at a hotel where they had both been drinking, that the victim had given Mr Ruautu Tara a lift home and that shortly afterwards he was alleged to have entered her home and sexually assaulted her. 9 At the hearing the Tribunal took Mr Ruautu Tara, who was unrepresented, through his evidence. There were some questions about the alleged offence of 28 February 2010 from the Tribunal but, in substance, these confirmed only that he had been acquitted. 10 Part of the Tribunal's process of reasoning (to which I return below) focussed on Mr Ruautu Tara's drinking habits. In this regard the Tribunal asked him about his drinking at the time of the offence of which he was convicted. The burden of this evidence was that at the time of the offence he had been drunk as a result of being out for a day of cultural celebration for Cook Islanders. The Tribunal also asked him about his drinking habits immediately before entering immigration detention (where there is no access to alcohol). His answer was that he still drank albeit not so much as before. The Tribunal did not ask him about his drinking habits at the time of the alleged offence of which he had been acquitted. 11 When the Tribunal concluded its examination of Mr Ruautu Tara he was cross-examined by the solicitor appearing for the Minister. This cross-examination ranged across two topics (for present purposes). First, he was asked about his pre-detention drinking habits. He accepted that he drank five or six extra-dry lagers on the weekend which made him a little bit drunk. He thought that if he were allowed to stay in Australia he would probably give up drinking. 12 Secondly, the Minister's solicitor sought to cross-examine Mr Ruautu Tara about the matter of which he had been acquitted. The end to which this cross-examination was directed was to show that the circumstances of the offence of which he had been acquitted were similar to those of which he had been convicted. The questioning commenced by showing him the remarks of the sentencing judge in respect of the offence for which he had been convicted. These contained a description of the offence. The cross-examination continued: Ms Weston (for the Minister): --- what was translated to you? Now, is that similar to the other offence that you were charged with? The facts that are - were just translated to you? Mr Ruautu Tara: No. Ms Weston: How was it different? Mr Ruautu Tara: Well, this one is - I understand, because I guilty of this one, and the offence is - I didn't do it. I'm not guilty. Ms Weston: But the woman who claimed you did something claimed you did something similar. Is that right? Ms Ettinger (the Tribunal member): Ms Weston, I won't allow that question. That's oppressive, and he was not convicted of the other charge. Ms Weston: Certainly, Senior Member. Don't worry about responding. 13 The Tribunal did not seek directly to use the offence of which he had been acquitted. It did, however, have some regard to it under the rubric of considering two matters which were mandatory to its consideration. The first of these was the seriousness and nature of the conduct. The conduct, of course, was the offence of which he had been convicted. The conduct was not, it should be emphasised, his drinking. So much is apparent from cl 10.1.1 of 'Direction (No. 41) - Visa refusal and cancellation under s 501' ('Direction 41') which makes it clear that the mandatory consideration of the seriousness and nature of the conduct is concerned with crimes, especially those involving violence. Sub-clause (1) provides: (1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community. 14 Sub-clause (2) then provided a list of 'offences and conduct that are considered serious' which began with 'murder' and did not, perhaps unsurprisingly, include being drunk. 15 When assessing the seriousness of the conduct constituting the conviction, the Tribunal approached the acquittal this way. First, it 'noted' that he had been charged with a sexual assault on 28 February 2010 but acquitted: [23]. It then noted at [25], having referred to the Tribunal's decision in Makasa v Minister for Immigration and Citizenship [2011] AATA 719, 'that a priori this Tribunal cannot go behind an acquittal'. 16 It went on to say this at [26]-[28]: 26. I noted from Judge McGuiness' [sic] statements and the documents of the Queensland Police Service at Exhibit R2, that Mr Ruautu Tara was affected by alcohol at the time of the 2009 sexual assault. I noted further that in relation to the events of 28 February 2010, the Police reported he had been drinking with the complainant at a hotel prior to the alleged assault. 27. The Applicant gave evidence that he was aware of his propensity to drink, and presently restricted his drinking to six or seven cans of beer on one day a weekend, or a couple after work some days. His evidence regarding the pattern of drinking was not consistent. I am mindful he has undertaken no rehabilitation, and no educational programs in relation to alcohol. His evidence was that he had not looked into any such programs. 28. Mr Ruautu Tara's conviction for sexual assault, the pending charges in New Zealand, and his propensity to alcohol which he has not addressed adequately, weigh against him remaining in Australia. 17 Taken together it is clear from these paragraphs that the Tribunal embraced a case that Mr Ruautu Tara had been drinking with the woman who reported the offence of which he had been acquitted. I draw this conclusion because one subject of [26]-[27] is Mr Ruautu Tara's propensity for alcohol and because otherwise the last sentence of [26] serves no purpose. It is not self-evident why the Tribunal was discussing Mr Ruautu Tara's propensity for alcohol at this point. The question which it was ostensibly addressing was how serious the offence he had been convicted of was. Whether Mr Ruautu Tara had a propensity to drink does not seem germane to that inquiry (except perhaps, at least at a theoretical level, by way of mitigation). 18 It was relevant, however, to the second mandatory matter that the Tribunal considered, namely, the risk of the conduct being repeated. This was made relevant, and therefore mandatory, by cl 10.1(2)(b) of Direction 41. 19 On that topic in relation to the alleged offence of which he had been acquitted the Tribunal said (at [33]): I am mindful of the role alcohol played in Mr Ruautu Tara's sexual assault in 2009, and the report that he had been drinking with the complainant in the February 2010 incident. I note also that he has not undertaken any rehabilitation or alcohol programs, and note that pursuant to paragraph 10.1.2(2)(b) of Direction 41, evidence of the extent of rehabilitation may be taken into account. There has been none that I know of in the Applicant's case. 20 It is plain from this paragraph that the Tribunal took into account the alleged fact that Mr Ruautu Tara had been drinking with the alleged victim prior to the offence for which he was acquitted. 21 The Tribunal therefore used some of the alleged facts surrounding the matter of which he was acquitted for two purposes: (a) as material indicating a propensity to alcohol consumption; and (b) as material indicating a propensity to commit sexual assaults whilst drunk. 22 Mr Ruautu Tara's case is that this was procedurally unfair because such a case was never put to him for his response. It is necessary to deal with these two matters separately.