AKAMA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 776

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 776

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/3787

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIEL AKAMA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 2 November 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

....................[SGD]..........................

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION — section 501 visa cancellation — protection of the Australian community — substantial criminal record — risk of re-offending — whether the person was a minor when they began living in Australia — length of time ordinarily resident in Australia — decision affirmed

Migration Act 1958, ss 499, 501

REASONS FOR DECISION

2 November 2011 Senior Member Bernard J McCabe

1. Daniel Akama is only 20 years of age, but he already has an extensive criminal record. He has been offending on a regular basis since he came to this country from New Zealand as a seven year old. He has been sent to prison on a number of occasions. Sensing that the Australian community has had enough, the Minister for Immigration and Citizenship has used the power in s 501(2) of the Migration Act 1958 to cancel Mr Akama’s visa. Mr Akama has asked the Tribunal to review the matter. He says he has changed and that things will be different if he is allowed to stay.

2.      I am satisfied the applicant’s visa should be cancelled. I explain my reasons below.

The power to cancel the applicant’s visa

3.      The power to cancel a visa for character reasons is set out in s 501 of the Act. The power can be exercised if the Minister (usually through his delegate) is satisfied the person is unable to satisfy the character test referred to in s 501(6). A person who has a substantial criminal record within the meaning of s 501(7) is deemed to fail the character test: see s 501(6)(a).

4. Mr Akama fails the character test because he has been sentenced to a number of terms of imprisonment. When added together, those terms of imprisonment exceed 2 years. That amounts to a substantial criminal record. I would add that I accept the applicant is not a person of good character having regard to his past and present conduct. In those circumstances, the discretionary power to cancel the applicant’s visa in s 501(2) has been enlivened. Should that power be exercised?

5.      The decision-maker (and the Tribunal upon review) must consider this question having regard to Direction 41: Visa refusal cancellation under s 501. The Direction is binding on the Tribunal: s 499.

6.      The preamble to the Direction says (at [5.1]) the government aims to “protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.” It is important that this objective be kept in mind, as visa cancellation proceedings are often misunderstood. Visa cancellations are not intended to provide an extra measure of punishment to non-citizens for crimes they committed after coming to Australia. Punishment is the job of the courts when a sentence is imposed following a trial or guilty plea. The job required of the Tribunal under the Direction is different. The focus of the Direction (and the government policy which underlies it) is protective in nature. That may come as a surprise in some quarters. Many people within the community feel a sense of betrayal or outrage when a non-citizen comes to this country and commits crimes. It is almost certainly true that many within the community say non-citizens who do not observe our laws should not get a second chance. But the Tribunal is not entitled to consider whether an applicant deserves to stay or be deported. The Direction makes clear that desert has nothing to do with it.

7.      The Direction identifies four primary considerations to which the decision-maker must have regard when considering whether to exercise the discretion. I will deal with each of them in turn. The Direction also identifies a number of other considerations that might be relevant. Those other considerations will generally count for less, but they must still be discussed. At the end of the process, I can express a view as to what is the preferable outcome.

Primary consideration one: Protection of the Australian community

8.      This primary consideration must be approached in two steps. The first step requires that I discuss the seriousness and nature of the relevant conduct. The second step requires that I consider the risk that the conduct may be repeated. It is important that both steps are seen as part of the one inquiry. The mere fact someone has committed a serious crime is not enough of itself to justify his or her removal from this country. As I have already explained, the Direction does not contemplate that a person will be subjected to extra punishment for crimes simply because he or she is a non-citizen. The focus of the Direction is on protection from future harm, which is why the Tribunal is also required to address the second question about risk.

9.      I have already noted the applicant has a lengthy criminal record notwithstanding his age. He was charged with a number of minor offences in March 2007. In May 2007, he was charged with two counts of failing to appear in accordance with an undertaking, and another charge for committing a public nuisance. In July 2007, there were further charges: possessing a knife in a public place, obstructing a police officer, and two charges of unlawfully using a motor vehicle. While he was found guilty on all charges, no conviction was recorded. His first recorded conviction was in September 2007. He was convicted of robbery with actual violence. He was given a suspended sentence that was served through a conditional release order. The Children’s Court dealt with a further string of stealing and motor vehicle offences in October 2007 which saw the applicant sentenced to community service and probation. In December 2007, he was sentenced to detention for 6 months in respect of a number of break and enter, trespass, stealing and assault charges, and for failing to appear in accordance with an undertaking. He received a further 3 month sentence in February 2008 after he breached the conditional release order that was imposed in September 2007.

10.     2009 started badly for the applicant. He was fined for consuming liquor on a public road and committing a public nuisance. In April 2009, he came before the Children’s Court and was sentenced to 6 months in detention after he was found stealing property from motor vehicles. There were several other vehicle charges, two burglary charges and a drug possession charge. There was no conviction recorded in respect of the drugs charge although the sentencing magistrate referred in his remarks (exhibit one at p 113) to his concern that the applicant had a drug problem. I will have more to say about that later.

11.     The applicant also came before the Cairns Magistrates Court on the same day in April 2009 to be dealt with for a number of other offences that he committed as an adult. These included unlawful use of a motor vehicle, burglary and stealing, receiving tainted property and unauthorised dealing, public nuisance and failing to appear in accordance with an undertaking. He was fined and sentenced on one charge to 9 months in prison and on other charges to 6 months to be served concurrently. He received a further 4 month term in prison after being convicted of burglary in June 2009. He received three six month terms of imprisonment to be served concurrently in subsequent proceedings in August when he was charged with unlawful use of a motor vehicle, attempted stealing and entering a dwelling with intent.

12.     The applicant’s record includes a number of minor matters. But there are also several more serious matters, most obviously his conviction in 2007 for robbery with actual violence. Robbery is one of the offences referred to in the Direction that is regarded as serious for the purposes of these proceedings. The Direction points out that any offence involving violence is particularly worrying. There is at least one other offence where the applicant was found to be carrying a weapon. I also note that one of the applicant’s cousins was killed while driving a stolen vehicle in which the applicant was a passenger. The applicant spent several days in a coma following the accident, and several weeks in hospital.

13.     I do not propose to recount the comments of the various sentencing judges about the nature of the applicant’s offences. I was provided with transcripts of those remarks. Suffice to say they betray an increasing sense of frustration at the applicant’s persistent and brazen offending.

14.     I accept that none of the offences he has committed could be said to be very serious offences. Most of the offences are minor, in fact. But there are so many offences in such a short space of time. The pattern of offending is serious, even if the individual offences are not all equally serious.

15.     The fact there is an established pattern of offending is relevant to the second task, namely assessing the risk that the conduct will be repeated. The applicant’s extensive history of recent convictions is worrying. The various sentencing judges were certainly frustrated by what they saw. In August 2010, for example, Acting Magistrate McFadden said (exhibit one at p 139):

…your history indicates you’re nothing but a professional criminal…

Everything has been tried with you and from here on and in the past couple of appearances before the Court, you’ve just been sent to gaol. There’s nothing else. There’s no other sentencing option available with you. You just go out and you go and commit an offence again. There’s absolutely no other sentencing option available.

16.     The fact the applicant committed offences soon after he was released from prison and while he was under supervision is also troubling. But his conduct while he was in gaol is not encouraging either. I note the applicant’s Corrective Services file records a number of assaults and other disciplinary infractions while he was imprisoned. It seems there is no clear break in the pattern of offending. He is constantly in trouble.

17.     The applicant has completed several trade courses and attended drug and alcohol counselling courses at various points while he was in gaol. He says he expects he will be able to obtain work when he is released if he is permitted to remain in this country. I note he has worked in the past, although he still committed offences while he was employed. It is unclear whether obtaining a job will make much difference now.

18.     I questioned the applicant at some length about why he committed offences. He put it down to bad company. That company included a number of his cousins, one of whom died when he crashed a stolen car in which the applicant was an occupant. The applicant denied any of his cousins were a bad influence on him, but it seems a number of offences were committed in the company of family members. He also spoke about drinking heavily on a daily basis, and he regularly consumed cannabis. It is unclear whether the applicant has really addressed these problems, even though he has completed some courses. He has been in gaol, so his opportunities for accessing drugs and alcohol are limited.

19.     The applicant says he plans to get a job and keep away from the bad company if he is allowed to stay. He says he regrets not paying more attention to his elderly grandmother, with whom he lives. But I am not satisfied the applicant will be able to stay away from bad influences given the evidence that members of his extended family are part of the problem.

20.     All of these factors taken together – the established pattern of recent offending, the fact that offences were committed while the applicant was under supervision or recently released from custody, the fact the applicant has repeatedly been warned about his conduct, and the fact the applicant’s environment on release is likely to include significant temptations – suggest there is a significant risk of reoffending if the applicant remains in Australia. The applicant has little insight into his offending; he attributes all of what occurred to his environment and to boredom. When I consider the risk of the pattern continuing in conjunction with the seriousness and nature of the conduct in question, I am satisfied the first primary consideration weighs heavily against the applicant staying in Australia.

21.     In reaching that view, I have not been swayed by the various letters of reference that were provided by the applicant. While these references generally spoke of the applicant in positive terms, they did not offer any reassurance that his pattern of offending would cease.

Primary Consideration two: whether the person was a minor when they began living in Australia

22.     The applicant was seven years of age when he first came to Australia. He has lived in this country with his grandmother since that time apart from an extended visit to New Zealand in 2005-2006 that lasted for about 15 months. Mr Akama and his grandmother visited family in New Zealand during that period. Most of his life has been spent in and around Cairns, however, where he was educated.

23.     The fact Mr Akama came to Australia at such a young age must count in his favour. While this country is not all that he knows, most of his childhood was spent here. The fact he spent an extended period in New Zealand means he does have a connection with that country as well; he spoke of visiting relatives during his stay there in 2005-2006. Even so, the fact he has been here since he was a small boy must weigh against the exercise of the discretion.

Primary consideration three: the length of time the applicant has ordinarily been resident in Australia

24.     This consideration proceeds on the assumption an individual who has spent a long period in Australia was more likely to have developed significant ties to the Australian community. Removing such a person from the community and severing those ties might be unduly harsh.

25.     Mr Akama has been a resident here since 1998, although he had a break of around 15 months in 2005-2006. It follows he has been a resident for about 12 years. That is a reasonable length of time in which to put down roots in the community. As it happens, Mr Akama has not had a lengthy history of employment and he has no business interests here to speak of. It is unclear whether he has other community ties apart from his familial relationships. I was told he played rugby. But he was not a regular member of a sporting club or other social groups.

26.     I accept Mr Akama has been in this country for a lengthy period – for the majority of his life, in fact. This consideration must count in his favour, although the limited nature of the relationships he has established outside his family suggest the consideration does not count especially heavily.

Primary consideration four: the best interests of the child

27.     This consideration does not assist Mr Akama. He is not a child, and I was told he does not have any children. I note his young nephew resides with him and his grandmother, but it is unclear how that child’s interests will be affected if the applicant does not remain in this country.

Other considerations

28.     I am not satisfied the applicant has any business or employment interests that will be affected if he has to leave. His family relationships will be disrupted, however. I infer he has a close relationship with his grandmother. He came with her to this country when he was a small boy and he has lived with her ever since. She is now in her 80s. It was not clear whether or to what extent she is dependent on the applicant. She can travel to visit the applicant in New Zealand if he is removed, although that will presumably become more difficult as she gets older. I note she has access to a number of other members of her family in this country. There was not much evidence on all of this. The applicant’s grandmother did not give evidence at the hearing.

29.     I expect the applicant will experience some hardship if he is deprived of his grandmother’s company and the relationship with his extended family members. He did not speak about this in any detail at the hearing, but it would be surprising if it were not the case. I have also noted the relationship with some extended family members appears to have contributed to his cycle of offending. I am also required to consider whether the applicant would experience negative consequences in light of his age if he is removed from the care and control of a care figure. I am not satisfied the applicant will be adversely affected, if only because the applicant’s grandmother has not been able to exercise much control over the applicant for a number of years. It is difficult to see how removing the applicant from her presence will have serious consequences for him.

30.     At the same time, I note the applicant has relationships with family members in New Zealand. He speaks the language and appears to be familiar with the culture. He has had recent contact with a number of the family members having spent time in New Zealand in 2005-2006. He is young and in good health. His skills mean he is equipped to get a job in New Zealand. He has a high school education and he has done some training courses while he was in prison. I am mindful that his low level of education might have put him at a disadvantage at the hearing. He was not an articulate advocate in his own cause but I went to some lengths to question him in detail about his situation. I also note Mr McLaren, who represented the respondent, was careful to assist the applicant by ensuring that appropriate information was placed before me.

31.     I am not aware of any other international obligations that might be relevant.

Should the visa be cancelled?

32.     I have explained that the first primary consideration counts heavily against the applicant. There is a serious risk that the applicant will continue to offend, and his pattern of offending is (and a number of the individual offences are) sufficiently serious to suggest the Australian community should be protected from him.  The other primary considerations either do not favour him, or favour him marginally. The other considerations favour him, but not to the point where I think the visa should not be cancelled.

Conclusion

33.     The applicant’s visa should be cancelled on character grounds. The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .......................[SGD]....................................................
  Associate

Date of Hearing   28 October 2011
Date of Decision   2 November 2011
Applicant   Self-represented
Solicitor for the Respondent      Mr D McLaren, Sparke Helmore