Anaki and Minister for Immigration and Border Protection (Migration)
[2016] AATA 693
•8 September 2016
Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 (8 September 2016)
Division
General Division
File Number
2016/0586
Re
Edward Anaki
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 8 September 2016 Place Perth The decision under review is set aside. The decision cancelling Mr Anaki’s visa is revoked under s 510CA(4) of the Migration Act 1958.
...........[Sgd].............................................................
Mr S. Webb, Member
CATCHWORDS
IMMIGRATION – mandatory visa cancellation – discretion to revoke – substantial criminal record – character test not satisfied – discretion to revoke visa cancellation if another reason – primary and other considerations – decision set aside
LEGISLATION
Migration Act 1958, ss 499, 501, 501CA
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mr S. Webb, Member
8 September 2016
Edward Anaki is a New Zealand citizen who has been living in Australia for most of his life. He has been convicted of a number of offences and he has served terms of imprisonment. This resulted in cancellation of his visa. Mr Anaki made representations to the Minister, seeking revocation of the visa cancellation. A delegate of the Minister decided not to exercise discretion to do so. Mr Anaki has applied for review of this decision.
This case requires more than a cursory assessment of Mr Anaki’s record might suggest. On consideration of a criminal history involving numerous convictions spread over more than 29 years, one might presume the cancellation of his visa should not be revoked. But presumption is not the standard against which measure is to be made. The measure, so helpfully set out in the Minister’s Direction, requires close examination of the facts and the evidence, weighing the seriousness of crimes Mr Anaki has committed, and the risk he poses to the Australian community, with what that community might expect be done in respect of his privileged presence in Australia on trust of lawful obedience when that trust has, so often and despite formal warning, been breached.
Background facts
Mr Anaki is a New Zealand citizen of Samoan extraction. He is 46 years of age.
He first arrived in Australia as a 16 year old child. He has spent most of his life in Australia. Most recently, on 27 August 2007, Mr Anaki re-entered Australia after visiting New Zealand for his mother’s funeral. He was granted a Class TY Subclass 444 Special Category (Temporary) visa, allowing him to stay indefinitely in Australia.
Many years ago he became addicted to heroin, although I am unable to determine precisely when this occurred. His subsequent history, over the last 10 years at least, is that of a wayward, homeless, sometimes desperate man, committing offences in the grip of chronic addiction and unemployment.
He has a lengthy criminal record. Over a 29 year period, he has been convicted of 127 criminal offences, 81 of which involved drug offences.[1] Mr Anaki has been sentenced to custodial sentences on 33 occasions – 7 sentences were suspended, 22 were for terms of imprisonments from 2 to 10 months, and 4 were for 12-month terms of imprisonment. All but one of these sentences related to offences Mr Anaki committed prior to April 2010.
[1] T11.
On 13 July 2009, he was issued a “FORMAL COUNSELLING LETTER” by the Department of Immigration and Citizenship (as it was then known) in respect of his criminal record, warning that future offending conduct would weigh heavily against his migration status.[2]
[2] T16 folios 230-231.
In the period from October 2009 to January 2010, Mr Anaki committed a series of offences for which he was sentenced to concurrent terms of imprisonment of up to 12 months.
On 2 September 2010, while serving out these custodial sentences, Mr Anaki was notified that cancellation of his visa was under consideration on character grounds.[3] On 3 December 2010, a delegate of the Minister notified Mr Anaki that a decision had been taken not to cancel his visa and that he was to be given the following formal warning –
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[4]
[3] T4 folios 57-62.
[4] T16 folio 237.
On 14 January 2015, Mr Anaki was convicted of a drug supply offence and he was sentenced to a 3-month term of imprisonment, commencing on that day.[5] This offence involved the supply of a “$50 deal” of cannabis.[6]
[5] T11 folio 145.
[6] T16 folio 206.
On 17 March 2015, while in prison, Mr Anaki was given notice that his visa was cancelled under s 501(3A) of the Act.[7] He was informed of the procedure to seek revocation of the cancellation decision.
[7] T10 folios 139-143.
On 23 March 2015, on appeal against the sentence imposed on 14 January 2015, the sentence was commuted to an 18-month good behaviour bond.[8] On release, Mr Anaki was taken into immigration detention.
[8] T14 folios 182-183.
On 29 March 2015, Mr Anaki made representations to the Minister, setting out reasons why the decision to cancel his visa should be revoked.[9]
[9] T14 folios 166-177.
On 2 February 2016, the Minister’s delegate decided not to revoke the decision by which Mr Anaki’s visa was cancelled. On that day he was given documentary notice of this and the reasons for it.[10]
[10] T16.
On 5 February 2016, Mr Anaki made application to this Tribunal for review of this decision.[11]
[11] T1.
ISSUES
In order to address Mr Anaki’s application for review, it is necessary to determine whether the discretion to revoke the decision cancelling his visa is enlivened under s 501CA(4) of the Migration Act 1958 (the Act) and, if so, whether it is appropriate to exercise the discretion in the particular circumstances. Section 501CA(4) of the Act provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
When deciding such matters, directions issued by the Minister must be applied: s 499(2A) of the Act. The Minister’s Direction No 65 – Visa Refusal and Cancellation under Section 501 (the Direction) is presently in force and applies for the purposes of this application.
Representations
There is no dispute that, on 7 April 2015, Mr Anaki made representations to the Minister, seeking revocation of the mandatory cancellation of his visa.
Character test
The character test is set out in s 501(6) of the Act. Among other things, this section provides that a person does not pass the character test if the person has a ‘substantial criminal record (as defined by subsection (7))’. Subsection 501(7) of the Act provides that a person has a ‘substantial criminal record’ if, among other things, ‘the person has been sentenced to a term of imprisonment of 12 months or more’.
It is quite clear, and there is no dispute, that Mr Anaki has a ‘substantial criminal record’ and he does not pass the character test.
Another reason
The Minister says there is not ‘another reason’ to revoke the mandatory cancellation of Mr Anaki’s visa. Mr Anaki has a long criminal record of offending behaviour. The serial nature of his offending was cause for judicial comment and regard in sentencing him on 14 January 2015. The risk of him re-offending is high, so the argument goes, and this would unacceptably expose the Australian community to harm. The Minister asserts that the Australian community expects that the visa of a non-citizen who has committed serious offences, such as Mr Anaki, will be cancelled.
Mr Anaki says the discretion should be exercised in his favour and the visa cancellation should be revoked. He argues that this is appropriate because he has broken the previous drug addiction that caused him so many problems in the past and he has strong family ties in Australia. In his submission, he undertook drug and alcohol courses when he was in prison. He maintains that he has tried to turn his life around and should be given credit for breaking his earlier pattern of offending conduct. He asserts that these considerations constitute ‘another reason’ why cancellation of his visa should be revoked.
When determining whether another reason exists sufficient to justify exercising the discretion conferred by s 501CA(4), regard must be had to Direction 65. Due consideration is to be given to provisions relating to General Guidance under s 6.2 and Principles under s 6.3.
For present purposes, under s 8(1), primary and other considerations set out in Part C must be taken into account, although primary considerations should generally be given greater weight than other considerations: s 8(4). Relevant independent and authoritative evidence must be given appropriate weight: s 8(2).
The primary considerations set out in s 13(2) are –
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
Detailed guidance in respect of these considerations is given in ss 13.1 to 13.3.
The other considerations that must be taken into account, where relevant, are set out in s 14.(1) -
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Detailed guidance in respect of these considerations is given in ss 14.1 to 14.5.
Protection of the Australian community
The importance of protecting the Australian community from harm resulting from criminal conduct by non-citizens is expressly coupled with conferral upon non-citizens of the privilege of remaining in Australia in the expectation that they will be law-abiding, respectful of important institutions and that they will not cause or threaten harm to individuals or the Australian community. Specifically, two considerations must be addressed –
(a)the nature and seriousness of the conduct: s 13.1.1; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: s 13.1.2.
Seriousness
The Minister argues that the seriousness of Mr Anaki’s offending weighs significantly against revoking cancellation of his visa.
Mr Anaki’s criminal record is set out in the National Police Certificate in T11.
When the sentences and penalties imposed against Mr Anaki are considered, it can be seen that some of the offences he committed were viewed by judicial officers as sufficiently serious to attract the imposition of custodial sentences. It is quite clear that the repetitive nature of his offending weighed against him.
Two of his convictions are in respect of offences involving violence – in 2009 he was sentenced to a 4-month term of imprisonment for assaulting an officer in the execution of duty, and in 1988 he was given a $200 fine and ordered to pay $400 compensation for malicious injury. In addition to these two crimes of violence, Mr Anaki’s most serious offences are those for which he was convicted on 13 April 2010 – two counts of Supply a Prohibited Drug; one count of Destroy or Damage Property; and one count of Larceny. Mr Anaki was sentenced to 12-month terms of imprisonment, served concurrently, for each of these offences.
Dealing with Mr Anaki’s appeal against the sentences imposed upon him at that time,[12] Blanch J sitting in the Criminal Jurisdiction of the District Court had this to say –
This is an appeal from Central Local Court when the appellant was convicted of a series of offences in October 2009 and January 2010. He had only just been released from gaol at the end of August 2009 and within five weeks of that he was committing offences. He has a history of committing offences. He has obviously got a problem with drugs and also with finding somewhere to live and just finding himself a place in the community.
With the commission of this series of offences involving a number of stealing offences and supplying drug offences, clearly prison sentences have to be imposed…
[12] See sentencing remarks of Magistrate Garbett, 13 April 2010, T16 folios 202-203.
Mr Anaki’s most serious offence since 2010 is one involving the supply of a small amount of cannabis for which he was convicted and sentenced to a 3-month term of imprisonment on 14 January 2015.
The offences Mr Anaki committed are not at the higher end of seriousness. This is especially so in respect of offences he has committed since 2010.
Mr Anaki maintains that the convictions and resulting penalties imposed on 13 April 2010 were a turning point in his life, after which his offending behaviour reduced.
In order to assess this assertion, it is necessary to consider the number and kinds of offences he committed before and after 13 April 2010. Assessing his criminal record in this way, it is quite clear that the seriousness and frequency of his offending conduct declined markedly after April 2010, but it did not cease completely.
In 2011, he was convicted of one drug possession offence, for which a fine was imposed.
In 2012, he was convicted of six drug or restricted substance possession offences, for which he was fined, and one count of “Goods in personal custody suspected of being stolen” offence, in relation to which a 9-month good behaviour bond was imposed.
In 2013, he was convicted of three drug possession offences: two warranted imposition of fines but the third attracted no penalty. In the same year he was convicted of resisting a police officer in the execution of duty on two occasions, only one of which warranted imposition of a penalty (a fine of $300), and of one count each of offensive behaviour and entering a vehicle or a boat without permission – each warranting imposition of $250 fines.
In 2014, Mr Anaki was convicted on three counts of drug possession, one count of shoplifting and one count of entering enclosed land without lawful excuse, with fines imposed in each case: $550, $120, $75 in respect of drug offences; $300 in respect of the shoplifting offence; and $330 in respect of the entry offence.
In 2015, Mr Anaki was convicted of one offence – supply of a prohibited drug, in respect of which a 3-month term of imprisonment was imposed. The sentencing Magistrate said –
Her Honour: … Well I mean you have gone to gaol for supplying a prohibited drug I do not know if it was – this was only a small amount of cannabis. $50 deal….
…Mr Anaki, I am afraid, I mean I am just looking at your record. Despite the fact that as I have said, the supply of cannabis was only a small amount, I am not dealing with your first, second, third, fourth or even fifth time. It is many more than that and in fact the last time you were charged with supplying a prohibited drug was 2010 and you were given, well you were given 12 months then three months. Then after that there has been a large number of possess prohibited drugs so you have been given gaol previously for supplying a prohibited drug. You have continued to use drugs, you were given the opportunity of going to MERIT, you did not go. You are obviously still using drugs and so in those circumstances, I mean supplying drugs is just not acceptable in this society.
It is one thing to use them yourself, but if you are prepared to supply them to other people for money and, as I say, there have been a number of occasions on which you have been convicted of supplying previously, then I really do not have any alternative in view of the fact that you have not shown any desire to rehabilitation other than to send you to full time gaol. Now I will take into account that fact that it is only a small quantity and it is cannabis which is not the most serious of the drugs that can be supplied…
I understand that the sentence was commuted on appeal by Blackmore J to an 18-month good behaviour bond commencing on 23 March 2015. The bond was “Subject to supervision by NSW Community Corrections, in particular with regard to drug & alcohol counselling”.[13]
[13] T14 folio 182.
There are three things to say about this history. Firstly, it is not for me to go behind these applications of the criminal law, but important principles of consistency and proportionality in the service of justice can plainly be seen. There is no good reason why similar principles should not be applied under Direction 65 and the primary legislative test it serves.
Secondly, the offences Mr Anaki committed after 13 April 2010 have a relatively minor character and would not generally be considered as serious crimes. The marked reduction in the seriousness and frequency of his offending after 13 April 2010 is consistent with his assertion that he tried hard to turn his life around.
Thirdly, the drug possession and other offences Mr Anaki committed after 2010 point to his continuing addiction to and use of prohibited drugs, without engaging in structured rehabilitation. They demonstrate a continuing disregard for the law and for the formal warnings he was given.
Whatever positive contribution Mr Anaki may have made in the time he has been in Australia, however great or small that contribution might be in the eyes of those who would form judgement about it, the two formal warnings he was given add weight to the history of offending conduct which stains his record. On 13 July 2009, while Mr Anaki was serving a term of imprisonment, he was given a formal written warning about the possible effect future offending might have on his migration status. And then, on 2 December 2010, when Mr Anaki was again serving a term of imprisonment for offences he committed in October 2009 and January 2010, the opportunity arose to cancel his temporary visa and remove him from the Australian community, but a delegate of the Minister decided not to do so, choosing instead to provide him with another formal warning about the possible effect of future offending conduct on his migration status.[14]
[14] T4 folios 43-55.
As can be seen, the mandatory provision that is now invoked to quash the visa by which Mr Anaki’s lawful presence in Australia was permitted was not then called into action to effect his removal. The proposition that offending conduct which, six years ago, when more proximate and fresh, and despite prior formal warning, was not considered sufficient cause to cancel his visa should, with the committing of further relatively minor offences, now be considered material cause to cancel his visa and remove him from the Australian community requires careful consideration of Mr Anaki’s conduct over the intervening period.
For this reason, the seriousness of offences he committed in the six years that have elapsed since that decision, including the crime that resulted in his imprisonment and caused cancellation of his visa in March 2015, must be carefully weighed, not only in the context of Mr Anaki’s criminal record, but also in the context of migration decisions made in relation to it. While inconsistency does not sit comfortably in the service of justice, disregard for the law tests the tolerance of the Australian community and undermines the trust on which Mr Anaki’s presence in Australia as a non-citizen rests.
Having regard to Mr Anaki’s record and to the remarks judicial officers and others have made over time, it is quite clear that his offending conduct has been closely related to his opiate addiction. His unchallenged evidence is that for a long period he was homeless and struggling with drug addiction.[15] By his own account, this continued until March 2015, when he was taken into immigration detention. Since that event, there is no evidence he has committed any offences.
[15] See T14 folio 168, for example.
In the period from 2 December 2010 to 23 March 2015, the bulk of Mr Anaki’s offending conduct related to possession of prohibited drugs. Only one offence was found to warrant a term of imprisonment. And it is quite plain, as the sentencing remarks of the magistrate clearly demonstrate, this offence, of itself, was not such that a term of imprisonment would be justified without a history of recidivism. Ruling on appeal against the sentence, Blackmore J commuted the sentence and imposed an 18-month good behaviour bond. It is clear enough that the offences Mr Anaki committed after 2 December 2010 would not usually be considered as serious crimes, but his recidivism weighed heavily against him.
The assessment of seriousness is attenuated, somewhat, by the relatively minor nature of these offences which, of themselves, alone, would not usually give cause for cancellation of a non-citizen’s visa. Even though the offences Mr Anaki committed after December 2010 are not very serious, the fact that he continued to offend despite two formal warnings about the potential effect of doing so on his migration status, adds to the seriousness of his offending conduct. So, too, does the cumulative effect of his recidivism.
There is evidence that on one occasion Mr Anaki provided false information to Australian immigration authorities about his criminal record. On re-entering Australia on 27 August 2007 after a visit to New Zealand for his mother’s funeral (his mother died while visiting New Zealand in 2007), Mr Anaki ticked ‘No’ to the question ‘Do you have any criminal convictions?’ on an incoming passenger card. He signed the declaration set out in the document stating that the information provided is true, correct and complete. Plainly enough, the information he provided was not true or correct – he had a number of criminal convictions in Australia at that time. This adds some weight to the seriousness of his offending conduct.
Mr Anaki tried to excuse this on grounds that he was fearful he would not be allowed into New Zealand to attend his mother’s funeral if he was truthful. The fact that the document is an incoming passenger card for entry to Australia defeats Mr Anaki’s assertion. When this was put to him, he explained that he “probably didn’t read it”. Nevertheless, there may be a grain of truth wrapped in Mr Anaki’s initial account – he may well have feared that he would not be allowed back into Australia if he provided truthful information about his criminal record. But that is not his evidence, and his efforts to excuse his untruthfulness in 2007 weigh against his credit in these proceedings.
On balance, having regard to the General Guidance and Principles in Direction 65, and to the matters set out in s 13.1 and 13.1.1, notwithstanding the reduction in his offending conduct since 2010, I am satisfied that his efforts to turn his life around are outweighed by the cumulative effect of his recidivism. It follows that the seriousness of Mr Anaki’s offending conduct, albeit not great, weighs against revoking cancellation of his visa.
Risk to the Australian community
The Minister asserts that there is a high risk of Mr Anaki re-offending. This submission has some force.
The Minister argues that the high risk of recidivism in Mr Anaki’s case is unacceptable, and this weighs significantly and determinatively in favour of non-revocation. I do not agree. As a matter of construction this consideration weighs in the balance, but it, alone, is not determinative.
It may be accepted that there is a risk of harm should Mr Anaki re-offend in the future. That is a statement of the obvious. For present purposes, a qualitative assessment of the risk of him re-offending is required. That risk and the seriousness of potential harm that may be caused if he does is a measure of whether the risk is unacceptable. As the seriousness of potential harm to individuals and the community at large increases, so, too, the tolerance of the risk of re-offending decreases. The potential for harm is related to the gravity of the consequences of offences Mr Anaki is at risk of committing, should he re-offend. And it is in this regard that Mr Anaki’s conduct must be considered.
I should say now that there is very little probative or expert evidence to go on in the assessment of risk in this case.
Mr Anaki has not committed offences of a more serious kind since January 2010. Nevertheless, the offences Mr Anaki committed were not victimless crimes.
Mr Anaki committed one offence of malicious injury in January 1988. He has not repeated this offence. In 2005 he was convicted of intimidating a police officer, and in 2009 he was convicted of carrying a cutting weapon and assaulting a police officer. He has not subsequently committed similar offences. Mr Anaki has not committed a violent offence since 2009. That he has not committed a crime of this kind for more than six years points to a low risk of him doing so in the future. That said, Mr Anaki has been convicted of resisting arrest on a number of occasions, twice since 2010. The present evidence, including the level of penalties imposed for these offences, does not establish that this conduct since 2010 had an especially serious or violent character. In all likelihood, the conduct was linked to Mr Anaki’s previous circumstances of drug addiction and related offending. His circumstances have changed. The risk of him re-offending may be linked to the likelihood of him relapsing into drug addiction. Otherwise, considering the precise nature and age of Mr Anaki’s offences, I do not consider that the risk of him re-offending is high. Harm associated with crimes of violence lies against individuals directly or indirectly affected by such crimes, and for the community in relation to secondary costs and effects. On the present evidence, the potential harm that may be caused should re-offend in this way is not especially grave.
Since 2010, Mr Anaki has committed one relatively low level property offence (shoplifting) and one unauthorised entry offence. Conduct of this kind over a 5-year period does not suggest a high level risk of him committing further property offences, or a risk of serious harm to individuals or to the Australian community if he does. The harm stemming from property offences of the kind Mr Anaki previously committed, including damaging or destroying a motor vehicle and handling stolen goods, is clear enough. This is harm to the owners of the particular items. Offences of this kind may result in ancillary harm or risk of harm to the community at large, relating to the social costs and effects of such criminality for example. There is a risk that he may re-offend in this way, but the present evidence does not establish that the risk is at a high level or that the potential harm would be of a serious character.
The bulk of Mr Anaki’s offending conduct after 2010 relates to possession of a prohibited drug, although he also has a history of supplying prohibited drugs from time to time. The risk of him re-offending in this way and causing harm to individuals or to the Australian community is difficult to assess.
I note the reports of Probation and Parole Officers in 2005 and 2010. On 12 November 2010, the District Manager of the St Helliers Parole Unit reported –
“Mr Anaki’s long standing drug addiction has led to his offending behaviour and consequent periods of incarceration. Throughout the current sentence, Mr Anaki has not attempted to undertake any programs to address his drug issues. Until such time as he does undertake intensive therapeutic interventions it is difficult to see how he will be able to reintegrate appropriately in the community.”[16]
[16] T16 folio 228.
This rather prescient observation is consistent with subsequent events and Mr Anaki’s continuing drug addiction and offending behaviour from 2010 to March 2015, albeit reduced.
By Mr Anaki’s own account, he was addicted to heroin for more than 10 years, but he has attempted to break the pattern of addiction, homelessness and offending. In August 2014, he successfully obtained permanent housing from the NSW Housing Commission. He asserts that the offence for which he was sentenced in January 2015 occurred prior to this event, while he was homeless. He told me that he did not participate in the MERIT rehabilitation program referred to by Magistrate Wahlquist when handing down sentence on 14 January 2015 because he was unable to undertake a residential rehabilitation program at that time without risking losing his newly acquired Housing Commission home. I understand that, subsequently, he has lost this home as a result of his imprisonment and subsequent detention.
On 23 March 2015, Mr Anaki gave a legally binding undertaking to comply with drug and alcohol counselling conditions attaching to the good behaviour bond imposed by Blackmore J on appeal against the sentences imposed on 13 January 2015. There is no reliable evidence that he has undertaken counselling of this kind. The only evidence that Mr Anaki has engaged in drug rehabilitation is his own. The proposition that Mr Anaki engaged in drug and alcohol counselling during the period of his imprisonment is not supported by reliable evidence. He asserts that the prison would hold all of the records of courses he undertook. The remarks of judicial officers and the reports of Probation and Parole Officers over time, stand to the contrary. That said, there is no evidence relating to his participation in drug rehabilitation or counselling during the period of his imprisonment from January to March 2015.
With the agreement of the Minister’s representative, I allowed time after the hearing for Mr Anaki to file additional materials in support of his oral evidence.
The only new document filed, is a letter of support from Mr Anaki’s sister in Sydney, Hallen Tanoi, dated 27 July 2016. Ms Tanoi states that Mr Anaki “can reside with me untill [sic] he gets back on his feet”. She was not required to give oral evidence.
Mr Anaki also filed a copy of the 23 March 2015 NSW District Court documents that are in T14 (folios 178 to 183). I understand that he relies on the bond conditions imposed by Blackmore J as evidence of his willingness to enter into drug rehabilitation. Mr Anaki did not provide any further documents in support of his contentions about drug rehabilitation.
There are very real doubts about Mr Anaki’s engagement in drug rehabilitation in the past. The present evidence does not establish that he has done so. It can be accepted that, for a person such as Mr Anaki, with a history, including a relatively recent history, of opiate addiction, the risk of regression and re-offending is increased without structured rehabilitation.
Mr Anaki gave evidence that he has not been afforded access to drug rehabilitation or related pharmacological treatments, such as methadone or buprenorphine, during the period of his immigration detention. This notwithstanding, Mr Anaki’s unchallenged evidence is that he broke his addiction in March 2015 - he has been “clean” for at least six months and he has not used heroin regularly since March 2015.
While I am inclined to accept Mr Anaki’s evidence on this point, it is not independently corroborated. Nevertheless, some support for this proposition may be drawn from the fact of his immigration detention since March 2015. No evidence was adduced about him (or any other detainee) having access to prohibited drugs, or the presence or illicit availability of such substances, during the period he has been held in detention. While the possibility of non-citizens in immigration detention obtaining access to prohibited drugs or restricted substances may exist, in all likelihood, it is remote, especially on Christmas Island. Without evidence, however, I am unable to make any firm findings on this point. Even though Mr Anaki’s evidence of his abstinence is not corroborated, it was not challenged and, to my mind, it is broadly consistent with his present circumstances. That being so, I am prepared to accept it.
Considering the evidence, the risk of Mr Anaki re-offending is related to the risk of him regressing into drug addiction, and the risk of him regressing into addiction is related to his circumstances. On the one hand, if he does not have stable accommodation and is unable to find a meaningful role or place in the community, the risk of him again resorting to drugs and re-offending is likely to be quite high. This risk is likely to be reinforced if he does not engage in structured rehabilitation and training. On the other hand, if he resides with his sister and engages in the life of his immediate and extended family, the risk of him breaking his present abstinence, and regressing into addiction and re-offending, is not as great, and this may be further reduced if he engages in structured rehabilitation and training or employment.
While I accept Mr Anaki’s oral evidence that, presently, he truly intends to change the previous pattern of his life and that he wants “to get back on track”, avoiding homelessness, addiction and offending behaviour, one would have to be somewhat naïve to assume that this will translate into reality. Enforced abstinence is one thing; maintaining abstinence as an act of free will in different circumstances where temptation and opportunity may arise is entirely another. These are notoriously difficult aspects of addiction to which the importance of structured rehabilitation is directed. Nonetheless, Mr Anaki’s stated intention is supported by the evident change in the seriousness and frequency of his offending behaviour after 13 April 2010 and his efforts to establish a home for himself, off the streets. And it is consistent with the commitment he made to comply with the drug and alcohol counselling conditions of the good behaviour bond imposed on 23 March 2015 and his present abstinence, albeit enforced.
This notwithstanding, there is a risk that his true intention now, in his present constrained circumstances, may not in fact be realised if the mandatory cancellation of his visa is revoked. His history of addiction without engaging in structured therapeutic rehabilitation reinforces this risk. It follows that there is a risk that Mr Anaki may re-offend or engage in serious conduct relating to prohibited drugs in the future.
Three factors serve to mitigate the risk:
(a)the marked reduction of his offending conduct since 2010 to the extent that the offences he subsequently committed would not usually be considered serious;
(b)the length of time he has been abstinent since being removed in March 2015 from the influences that supported his previous drug addiction; and
(c)the involvement of his family, and his sister in particular, should he be permitted back into the Australian community.
Clearly enough, the more serious the offence, the more serious the harm that may be caused. In all likelihood, potential harms associated with further drug possession offences may be substantially lower than potential harms associated with further drug supply offences. While some potential harm may flow from possession of a prohibited drug, without supply, the harm is likely to be directed to the drug user, primarily, and to the community in terms of ancillary risk. The harm associated with supplying a prohibited drug is both individual and societal. The stronger and more damaging the drug supplied; the greater the risk of harm. And so it is in Mr Anaki’s case. While some harm may flow should he supply a small amount of cannabis, the potential harm is of a lesser degree than harm that may flow from him supplying of a quantity of heroin, for example. Harm in this context includes individual harm to the person affected, in the form of addiction or adverse health effects for example, as well as harm to the community, in the form of criminality or social and economic costs for example.
The Minister argues that the nature of the harm to be considered includes the families of those affected by drug dependency. The proposition that drug-dependency might cause harm to families of persons who are drug-dependent may be accepted in general terms but, without evidence, it cannot be assumed in each particular case. There is no evidence of the way in which Mr Anaki’s drug supply offences harmed the families of those persons affected by such offences in the past, and there is no evidence from which an inference of future harm to the families of drug-dependent persons can be drawn with any particularity. Assumption of harm is not sufficient to establish ‘the nature of harm to individuals or the Australian community’ and the ‘risk to the Australian community’ should Mr Anaki commit further criminal offences or other serious conduct in the future.
The Minister argues that Mr Anaki has exhibited ‘blatant’ disregard for the law in the past and he provided patently incorrect information in an official document in August 2007. Quite clearly, Mr Anaki’s continued offending conduct after being given formal warnings in July 2009 and in December 2010 reinforces this submission. Furthermore, it is quite clear that Mr Anaki breached court orders in 2001 and in 2003, and he has resisted officers acting in execution of their duties on several occasions, most recently on 20 December 2013 (although a conviction was entered, no penalty was imposed). Evidence of Mr Anaki’s relatively minor offences since 2010 provides a measure of his disregard for the law at the time. It is not controversial that his offending conduct was closely related to his drug addiction. Since breaking his addiction in migration detention, there is no evidence that he has committed any further offences while detained.
Tolerance of risk of harm increases as the seriousness of potential harm decreases. The present evidence does not support a finding of high risk that Mr Anaki might commit further offences of a more serious kind, such as he committed before January 2010. Furthermore, Mr Anaki’s conduct since April 2010 demonstrates a clear reduction in the seriousness of offending conduct and the harm that may flow, should it be repeated. It follows that a higher threshold of tolerance may be applied to the risk of him re-offending and causing harm of this kind.
On balance, having regard to the General Guidance and Principles in Direction 65, and to the matters set out in s 13.1 and 13.1.2, I am satisfied that the risk of Mr Anaki causing future harm to anyone in the Australian community is not so great that it is unacceptable or intolerable. While caution may err on the side of protection when considering matters of this kind, I am satisfied that this primary consideration does not weigh against revoking cancellation of Mr Anaki’s visa.
Best interests of minor children
The requirement to determine whether revocation is in the best interests of minor children is the second primary consideration that must be addressed. This consideration has played but little part in the proceedings. This is because Mr Anaki has not raised any claims in respect of minor children.
There is no evidence, presently, that Mr Anaki has a parental relationship with any minor children.
It is apparent from the evidence provided by Ms Tanoi, that Mr Anaki has an extensive family in Australia, including siblings, uncles, aunts, nieces, nephews and their children.
The present evidence is not sufficient to allow findings to be made about the nature and duration of any relationship Mr Anaki may have with any minor children in his family. And it is not sufficient to enable me to determine whether revocation would be in the best interests of any child relative of Mr Anaki’s. That being so, I can go no further with this primary consideration.
Expectations of the Australian community
The third primary consideration is in respect of expectations of the Australian community that non-citizens will be law-abiding while in Australia –
13.3 (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The consideration of Australian community expectation allows, impliedly at least, reasonable judgement by a decision-maker, bringing appropriate perspective and proportionality to bear in the assessment of risk. Furthermore, the expectation must be considered contextually, relative to factors arising in relation to other principles set out in s 6.3 of the Direction 65.
The Minister submits that the tolerance of the Australian community would long ago have been exhausted in Mr Anaki’s case because of the number and frequency of his convictions, his disregard of formal warnings and the pessimistic assessment of rehabilitation and future risk.
However much Mr Anaki may have been driven to offend by opiate addiction and all that it entails, there can be no doubt that he has been the master of his own misfortune. I accept that Mr Anaki has struggled with these aspects of his life in recent years and, in the years since 2010, his efforts enabled him to curb the seriousness and frequency of his offending, even though, by his own account, he failed to break his addiction until March 2015. He calls for recognition of these small gains and successes, and his call is reinforced by his apparent abstinence over recent months, albeit enforced and without structured rehabilitation.
To my mind, the Australian community may well have expected Mr Anaki’s visa to be cancelled in 2010, when his offending conduct was at its peak, but this did not occur. Whether that expectation holds in view of subsequent events is finely balanced. While the Australian community might expect that a non-citizen who has committed crimes over a long period should have his or her visa cancelled, there is room within that expectation for proportionality, especially in the face of changed behaviour and a clear undertaking to engage in structured rehabilitation. This is such a case, albeit at the border perhaps.
On the one hand, the expectation would allow but little tolerance in view of Mr Anaki’s extensive criminal record of repetitive offending conduct over many years. This is reinforced by his disregard of the formal warnings given to him about the likely effect of such conduct on his migration status. Dressing up Mr Anaki’s offending conduct with colourful language, as those representing the Minister have done using words such as ‘deplorable’ or ‘astonishing’, risks missing the true character and seriousness of the offences he committed and the changes in the pattern of his offending behaviour since 2010.
On the other hand, the expectation would allow for a proportionate response in view of the reduction in frequency and seriousness of Mr Anaki’s offending conduct since 13 April 2010. Evidence of his efforts to break the addiction that has been the driving factor underlying his offending conduct over many years, including the letters from Una Hanlon, a Senior Community Worker with the Wayside Chapel[17] and Soren Hillis, a Community and Rehabilitation Support Worker with Neami Way2Home,[18] lend support to a tolerant assessment.
[17] T14 folio 176.
[18] T14 folio 177.
Even though Mr Anaki has a long criminal history, the nature of his offending is more craven than it is malicious: it is less the conduct of a violent thug or a predatory malefactor than the conduct of a person struggling with drug addiction, homelessness and unemployment. Nevertheless, it is craven to the extent of continuing disregard for law and for the warnings given. The extent to which Mr Anaki has breached the expectation of obedience to Australian law offends the trust on which his presence in Australia for most of his life as a non-citizen has rested. Those aspects of Mr Anaki’s conduct cannot easily be stepped over when the weight of his criminal history is taken into account.
Even so, the Australian community expectation of consistency in government decision-making is a relevant consideration. If the seriousness, frequency and cumulative effect of Mr Anaki’s offending conduct up to 2010, and his disregard for the notice he was given in July 2009, was not sufficient to require cancellation of his visa at the time, one has to ask what has subsequently occurred to justify that action now. The answer is that Mr Anaki committed further offences of a relatively minor nature, one of which resulted in him being sentenced to a further term of imprisonment (albeit later commuted). The fact that he re-offended must be weighed against the relatively minor nature of the particular offences he committed, which of themselves may not be sufficient cause to cancel his visa.
In these circumstances, the Australian community would expect a proportionate and reasonable judgement to apply. Important principles of consistency arise. Even so, I think that tolerance of Mr Anaki’s recidivism is tested to its limit.
I am mindful that Principle 6.3(5) provides that a higher level of tolerance of criminal conduct may be afforded to ‘a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.
On balance, while the limit of tolerance of Mr Anaki’s offending conduct has been reached and tested, it has not yet been exceeded. Reasonable judgement of his conduct over time supports a proportionate assessment, presently. I accept that this is a point on which reasonable minds may differ. To my mind, weighing the evidence and having regard to the relevant circumstances, this expectation of the Australian community does not weigh against revoking cancellation of Mr Anaki’s visa.
Other considerations
International non-refoulement obligations
International non-refoulement obligations do not arise in this case.
Ties to Australia
The strength, nature and duration of Mr Anaki’s ties to Australia are secondary considerations that must be weighed in the balance, albeit with less weight than primary considerations.
Mr Anaki has lived in Australia for most of his life. Mr Anaki is 46 years old and he has been in Australia for 30 years. Minds may differ about the extent of any positive contribution he may have made to the Australian community during that time. Mr Anaki’s first offence in Australia is recorded on 20 February 1987, within two years of his first arrival. He was a child at the time.
All of Mr Anaki’s immediate family, including one brother, two sisters and their families (including children and grandchildren), reside in Australia – primarily in Sydney. Mr Anaki has two uncles, three aunts, three nieces, 13 nephews and 20 cousins residing in Australia.[19] One of Mr Anaki’s sisters (Elizabeth) is an Australian citizen. His other siblings (Ms Tanoi and Edward) are permanent residents in Australia.
[19] T14 folio 175.
There is very scant evidence of the effect on his immediate family members if the mandatory cancellation of his visa is not revoked. Ms Tanoi stated that Mr Anaki “is loved very dearly by all his family and have great concern’s [sic] for him if they decide to move him back to New Zealand with no family members residing there”.[20] I note the reported comments of Mr Anaki’s brother in 2010.[21] These comments are not indicative of a close sibling relationship, but they are now more than five years old.
[20] Email by Hallen Tanoi, 27 July 2016.
[21] T4 folios 120 and 122.
On the basis of Ms Tanoi’s comments, it may be accepted that some negative effect may arise for Mr Anaki’s immediate family if the mandatory cancellation of his visa is not revoked, namely concerns about his well-being in New Zealand and, impliedly at least, the effects of distance across territorial borders on Mr Anaki’s relationship with his siblings and their children and grandchildren. I should say now that the present evidence does not establish that Mr Anaki has a close relationship with family members in recent years.
Thus, in summary, despite his troubled background, Mr Anaki has been in Australia since childhood. Even though he commenced offending soon after arriving in Australia as a child, he has family ties to Australia, with all of his immediate family residing in Australia. On balance, Mr Anaki’s ties to Australia weigh in favour of revoking cancellation of his visa.
Impact on business
This consideration does not squarely arise in this case. The only consideration might relate to the evidence of Mr Anaki’s previous employment in the construction industry. But this came to an end in 2001 and he has not been in employment in Australia since that time.
There is no evidence to suggest that Mr Anaki has an ‘employment link’ to Australia that would cause any effect whatsoever in Australia if the mandatory cancellation of his visa is not revoked.
Impact on Victims
This consideration arises only inferentially.
There is no evidence of or from any victims of crimes committed by Mr Anaki in respect of a decision ‘not to revoke’ mandatory cancellation of his visa. It is a little difficult to see how non-revocation (and consequent removal from Australia) might impact upon members of the Australian community, including victims of crimes he committed.
I can go no further with this consideration on the present materials.
Impediments if removed
The Minister concedes that Mr Anaki may experience some hardship if he is returned to New Zealand.
Ms Tanoi and Mr Anaki have given evidence that supports this assessment. Some members of Mr Anaki’s extended family reside in New Zealand, but he has not had contact with these people for many years – since his mother’s funeral in 2007. His travel records up to 2010 reveal that he did not travel frequently to New Zealand.[22]
[22] T4 folio 56.
All members of Mr Anaki’s immediate family live in Australia. He told me that he has friends in Australia. Whether his friends in Australia might help or hinder him to maintain drug abstinence I cannot assess, although I note the letters of support from community workers at the Wayside Chapel and Neami National.
I accept that it may be difficult for Mr Anaki to establish support networks in New Zealand.
On the present evidence, the only significant factor affecting his health is drug addiction, although by his own account he has been “clean” for several months. Predicting the risk of Mr Anaki regressing into drug use and addiction in the future in Australia, or in New Zealand if the cancellation of his visa is not revoked, is fraught with uncertainty and difficulty. The balance of the evidence is that the risk is elevated if he does not engage in structured rehabilitation. Rehabilitation of that kind may be available to him in Australia and in New Zealand, although I have seen no detailed evidence on this point. Furthermore, the risk of regression may be elevated without familial or other support networks.
That said, no substantial cultural differences or related impediments have been raised in evidence or submissions. Australia and New Zealand are broadly comparable in language, culture and access to social, health, education and other public support services.
On balance, I think the hardship Mr Anaki may experience if he is returned to New Zealand weighs in favour of revoking the cancellation of his visa.
Conclusion
Mr Anaki’s case is finely balanced.
Having regard to the General Guidance and Principles in Direction 65 and apportioning due weight to each of the primary and secondary considerations, I am reasonably satisfied that the discretion conferred by s 501CA(4) is enlivened – despite not passing the character test, there is another reason why the original decision to cancel Mr Anaki’s visa should be revoked. This is that Mr Anaki has committed only relatively minor offences since his case was last subject to determination in 2010, and those offences, alone, are not sufficient to cause his visa to be cancelled.
In the particular circumstances, primary considerations relating to protection of the Australian community weigh marginally against revocation. The nature and seriousness of his conduct, including Mr Anaki’s recidivism and the weight it attracts when assessing the seriousness of his offending conduct for the purposes of protecting the Australian community, weighs slightly against revocation. The assessment of risk and harm to the Australian community hangs in the balance and does not weigh against revocation. Considerations relating to the expectations of the Australian community are also finely balanced and do not weigh against revocation. Other considerations involving Mr Anaki’s ties to Australia and impediments if he is returned to New Zealand weigh in favour of revoking the decision to cancel Mr Anaki’s visa.
When all relevant considerations are given due weight, and all of the materials and evidence before the Tribunal is taken into account, the balance tips marginally in favour of revocation. Considerations weighing against revocation do not out-weigh those that weigh for revocation. That being so, it is appropriate to exercise the discretion conferred under s 510CA(4) of the Act to revoke the mandatory cancellation of Mr Anaki’s visa. I am satisfied that doing so is the preferable decision in all of the circumstances.
Decision
The decision under review is set aside. The mandatory cancellation of Mr Anaki’s visa is revoked.
I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .......[Sgd].................................................................
Administrative Assistant
Dated 8 September 2016
Date of hearing 22 July 2016 Applicant Self-represented (by video-link) Counsel for the
RespondentMr A Gerrard Solicitors for the Respondent
Australian Government Solicitor
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