Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background Facts 9 On 7 May 2015 the applicant failed the character test in s. 501 of the Act when he was sentenced to an aggregate 54 months term of imprisonment. His visa was subsequently cancelled on 22 June 2017 under s. 501(3A) of the Act. The crimes the applicant committed on this occasion included intentionally causing injury, recklessly causing injury, assault, injurious imprisonment, making a threat to kill, assaulting police and intentional damage of property. It was not entirely clear what acts comprised these crimes. Court Services Victoria had advised the Minister's Department that sentencing remarks and other further information were "not available." Instead, the Minister had regard to a media article which described a four hour siege at Bairnsdale at which the applicant held his partner, Ms. Alana Cook, and his children hostage. This had apparently been presented to the applicant for comment. He did not dispute the contents of the article, although he did seek to qualify the seriousness of his offending. In his decision, the Minister described the article, and the applicant's qualification, in the following terms at para. 68: I have considered the general context of a media article published in the Melbourne Herald Sun on 12 June 2014, titled 'Man arrested after holding pregnant ex-partner and her children hostage in four-hour siege in Bairnsdale'. The article suggests that Mr TUBERI, suspected of being on drugs, had taunted police while holding his pregnant ex-partner and her two children hostage during a four-hour siege. The article also suggested that during the siege Mr TUBERI came out of the house with a wooden object and smashed the front and side windows of a police vehicle that was parked at the scene, and that he appeared 'extremely aggressive'. The article implied that during one of Mr TUBERI's tirades towards the police, an officer was able to usher the woman and children to safety. While I accept that media articles can be exaggerated and are not always correct or accurate, I have considered the general information in relation to the offence as stated above. I also note that the article was presented to Mr TUBERI for comment and he has not disputed the information contained in the article. In relation to this article however, Mr TUBERI's representative submitted that Mr TUBERI did not have [a] firearm, did not make threats to kill and did not touch or hurt Ms Cook. However his representative does state that Mr TUBERI 'rampaged around the house' and behaved in an 'aggressive and frightening manner'. 10 The National Police Certificate, which was before the Minister, reveals a very long history of criminal convictions commencing on 6 April 2006 in the Bairnsdale Children's Court and ending on 11 November 2016 in the Bairnsdale Magistrates' Court. 11 In his decision made for the purposes of s. 501CA(4) of the Act, the Minister made a number of findings which favoured revocation of the visa cancellation decision. These were well summarised in the applicant's written submissions as follows: (a) It was in the best interests of Mr Tuberi's biological daughter, Orlanda, that the cancellation be revoked. (b) It was in the best interests of Mr Tuberi's stepsons, Xavier and Izaiah, that the cancellation be revoked. (c) It was in the best interests of Mr Tuberi's child-aged brother, Aaron, that the cancellation be revoked. (d) Mr Tuberi had other familial ties to Australia, comprising: his mother, stepfather, a sister, two step siblings and an uncle and aunt. A decision not to revoke Mr Tuberi's Visa [cancellation] would occasion emotional hardship on this family unit. (e) Mr Tuberi has made a positive contribution to the Australian community for 20 years, through his employment, church youth group and sailing activities. (f) A lower standard of health services will be available to Mr Tuberi in Fiji when compared to Australia. (g) Mr Tuberi will have limited social and economic support in Fiji. (h) Mr Tuberi may experience difficulty in finding employment and earning an income in Fiji. (i) Mr Tuberi may experience difficulty in finding accommodation in Fiji. (j) Mr Tuberi may be unable to maintain the same standard of living in Fiji. (k) Mr Tuberi will face very significant impediments to resettlement in Fiji. (l) Separation from his children and his family will cause Mr Tuberi emotional hardship. (m) There were mitigating factors that may have contributed to Mr Tuberi's previous offending. (n) Mr Tuberi was remorseful for his previous offending. (o) Mr Tuberi was motivated to change his behaviour now that he is a father. (p) Mr Tuberi had successfully completed courses directed at his rehabilitation. (q) Mr Tuberi had the support of his family in his rehabilitation efforts. (r) Mr Tuberi was to be provided with ongoing professional support, in his rehabilitation efforts. (Footnotes omitted.) 12 I gratefully adopt the foregoing summary. 13 Nonetheless, the Minister decided that the applicant represented an unacceptable risk of harm to the Australian community and that this factor outweighed all of the matters which supported revocation of the cancellation decision. The Minister concluded at para. 112 of his reasons as follows: In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TUBERI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, his claims that he will suffer hardship and harm if returned to Fiji, employment, volunteer and familial [ties] to Australia, and the hardship Mr TUBERI, his family and social networks will endure in the event the original decision is not revoked. 14 As the most serious of the crimes committed by the applicant were committed in connection with the "siege" at Bairnsdale involving Ms. Cook, the applicant drew to the Court's attention his claim that he was now committed not to make contact with her. That claim was recorded at para. 46 of the Minister's reasons for decision as follows: I accept that Mr TUBERI's representative has stated that "[the applicant] is committed to having no contact with [Ms. Cook] and contact with the children when the IVO orders allow it'. The representative also states that 'the impact on [Ms. Cook] would be minimal if [the applicant] was allowed to remain in Australia'. 15 There appears to be a passing reference to this claim in the Minister's consideration of the risk to the Australian community at para. 90 of his reasons as follows: Mr TUBERI's representative also submits that he is not a threat to the Australian community or to his ex-partner as he is committed to abstaining from drugs and alcohol, and that he understands that he cannot contact Ms Cook by any means. (Emphasis added.)