Aporo and Minister for Immigration and Citizenship
[2007] AATA 1877
•18 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1877
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3675
GENERAL ADMINISTRATIVE DIVISION )
Re Mita Aporo
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMs Naida Isenberg, Senior Member
Date18 October 2007
PlaceSydney
DecisionThe decision under review is affirmed
.......................[sgd].......................
Ms Naida Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – applicant’s visa cancelled for failure to pass character test – exercise of discretion – applicant is a serial offender and has an extensive criminal record – little evidence of rehabilitation – community would not expect for such a person to be given unlimited chances to reform – best interests of the child considered – decision under review affirmed.
RELEVANT ACT/S:
Migration Act 1958: ss 499, 500(6B), 501, 501(2)(a) and (b), 501(6)(a),, 501(7), 501G(1)
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Stevanovic and Minister for Immigration and Citizenship [2007] AATA 1427
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Nystrom v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 143 FCR 420
Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100
Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
OTHER REFERENCES
Direction No 21
International Covenant on Civil and Political Rights
Convention on the Rights of the Child
REASONS FOR DECISION
18 October 2007
Ms Naida Isenberg, Senior Member
Summary
1. This is an application for review of a decision made under s.501 of the Migration Act concerning Mr Mita Taupopoki George Aporo, a national of New Zealand, born on 9 July 1973
2. Mr Aporo initially arrived in Australia on 23 December 1983. He has made several journeys to New Zealand since his arrival. Mr Aporo has been living permanently in Australia since 1989.
3. On 1 September 1994, due to the Migration Reform (Transitional Provisions) Regulations, Mr Aporo became the holder of a Transitional Special Category Visa (Subclass TY 444).
4. On 15 March 1999, at the NSW District Court Mr Aporo was convicted of two counts of assault and one count of Assault Officer in Execution of Duty (Police Officer) and one count of Intimidate Witness. On appeal, Mr Aporo was sentenced to two years imprisonment with a non parole period of 1 year and 6 months (G p103)
5. On 11 March 2005, at Manly Local Court Mr Aporo was convicted of two counts of Assault Occasioning Actual Bodily Harm and one count of Common Assault. Mr Aporo was sentenced to 12 months imprisonment with a 9 month parole period (G p101).
6. On 12 March 2007, at Central Local Court, Mr Aporo was convicted of 7 counts of Shoplifting. Mr Aporo was sentenced to 12 months imprisonment with a non parole period of 9 months, which was to commence from 20 June 2006 (G p99).
7. On 19 March 2007 Mr Aporo was released from Silverwater Correctional Centre.
8. Until the present matter, Mr Aporo has never been warned about the possibility of deportation under section 201 of the Migration Act or visa cancellation under section 501 on the grounds of character.
9. On 12 July 2007 a delegate of the Minister for Immigration and Citizenship decided to cancel the Applicant’s visa on the basis that he did not pass the character test. Notice of this decision was subsequently received by the Applicant.
10. On 26 July 2007 as a result of the cancellation of Mr Aporo’s visa, Mr Aporo was detained by the Department of Immigration and Citizenship and has remained at Villawood Detention Centre since that cancellation.
11. Mr Aporo applied for a review of the Minister’s decision to cancel his visa under s 501 of the Migration Act on 3 August 2007.
12. Mr Aporo is dyslexic and the condition was diagnosed only in the late nineteen nineties.
13. Mr Aporo’s mother, Lucy Tui, and brother, Kamalomi Joshua Sassen, daughter, Marsini Hopoate, and girlfriend, Alexandria Kara are all Australian citizens and reside in Australia. He has one brother, James Aporo, living in New Zealand, whom Mr Aporo has no contact with.
14. Mr Aporo is currently on a buprenorphine maintenance program to address his drug dependence. He has been on the program since July 2005.
15. Mr Aporo has also sought counselling from the Queenscliff Community Health Centre in relation to his drug dependence since his release from prison in March 2007. He has attended two sessions, on 12 April 2007 and 23 May 2007, before he was detained by the Department of Immigration and Citizenship.
16. At the hearing, the Applicant was represented by George Lombard and Anjilla Khwaja, Solicitors, of George Lombard Consultants , and the Respondent by Tessa Van Duyn, Solicitor, of Clayton Utz. The documents before me comprised the documents produced pursuant to s 501G of the Act (“the G documents”), together with other documents tendered by the Applicant at the hearing, detailed at annexure A hereto. The Applicant gave oral evidence at the hearing.
Issue
17. As the Applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant Law and Policy
18. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). 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 is met. The relevant ground in the current matter is set out in paragraph (a) , as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
…
19. “Substantial criminal record “ is defined in s 501(7)
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
20. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
21. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction sets out matters the decision maker must take into account - including the protection and expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations - when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Ministerial Direction states that the purpose of refusing or cancelling a visa under s 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice, on behalf of the Australian community as a whole, as to who should be allowed to enter or remain in the community.
The applicant’s evidence
22. The Applicant in his oral evidence adopted his statutory declaration (Exhibit A6) filed in draft format with the Tribunal on 26 September 2007 and subsequently in signed format on 4 October 2007. In that statement he recounted details of a distressing childhood. His mother had moved to Australia when he was 18 months old and had left him and his brother in the care of grandparents.
23. He was brought up mostly by his grandparents and had no recollections of his mother before the age of 6. He was essentially estranged from his father when young. At school he excelled at sport but was very slow academically. He was diagnosed with dyslexia only a few years ago.
24. He came to Australia at age 15 or 16 to live with his mother. Very soon after he arrived though he ‘did some very stupid things’ and was sent to juvenile detention. He described that time in detention as ‘a turning point in my life’ (Exhibit A 6 p4).
25. He had a promising sporting career, playing with Manly in the under 17s and under 19s. He was provided with lodgings, food and expenses. He ceased though in about 1995 or 1996 to concentrate on kickboxing, in which field he became the Australian champion, earning up to $2000 per fight. This he said, was something of which he was very proud.
26. In his statement he described how during his 1997 prison term he was introduced to heroin. He attempted to complete rehabilitation but his sentence was not long enough to complete such courses. Whilst in prison during the 1999 – 2000 sentence he was able to commence but not complete an anger management course.
27. In his written statement the Applicant also describes the various family members in Australia and the close relationships he has with these members, including his 10 year old daughter. He says that if he were to be returned to New Zealand he would be alone as he does not have any family there.
28. At the hearing in his oral evidence the Applicant began by detailing the events of his childhood as outlined in his written statement. He also said that he had started using drugs at age 17. His most recent conviction was for shoplifting, which he said was to finance his drug habit.
29. He has relatives in Australia: his mother, a half brother and his family, his daughter and a girlfriend.
30. In New Zealand now he only has a brother with whom he is not close. There are other relatives in New Zealand including extended family and in particular – a cousin – who murdered his wife. His father passed away at Christmas last year. His trips to New Zealand had been to visit his father and other relatives or to participate in kickboxing fights.
31. His evidence of his relationship with his daughter was slightly confusing and at times contradictory. He said that when his daughter was 7, about 2 years ago, her mother, as a condition of the child’s baptism, was obliged to tell the child about her natural father. Until that time his daughter thought her step-father was her natural father. The Applicant had only seen his child once at that stage. He did not attend the baptism. She ‘knew who he was’ and he has seen her at his nephews’ football matches, but had not seen her for 18 months. He denied he told an officer of the Department that he spoke with her twice weekly. He said he had spoken to his former partner a few times since they split up. The last occasion, about 12-18 months ago, was to ask for a statutory declaration in support of this application. In cross-examination however he said he spoke with her every month or two. He does not provide maintenance for his daughter, because he did not know that he had to. He said his father left something when he died and that would be for his daughter.
32. As to his girlfriend, he said he had been in a relationship with her for 4½ years and they lived together for about 15 months in 2002-3. She lives in Melbourne because her mother is ill. He has not seen her for 4 months and they have their ‘ups and downs’. He said she would be unlikely to go to New Zealand with him because of her mother.
33. He said he ‘feels terrible’ about the serious crimes he has committed. He said that the kickboxing taught him some self-discipline and that most of his assault charges were before that time. He conceded that at least one assault (of a police officer) had occurred after he had commenced kickboxing, but thought his ’past assault charges were worse’.
34. While most recently in prison he undertook an anger management course ‘daily for 6 hours’. Although he was unimpressed with the course he thought it ‘did wonders’ in 3 months. After his release from prison in March this year he said he was seeing counsellors every week. He was attending the Sydney Road Centre for his buprenorphine medication, to address his heroin addiction. He conceded that although he had attended the Centre from July to December 2005 he had had a relapse. He said though he has been consistently on buprenorphine medication for about 2 years.
35. He said the 6 week anger management course he is presently undertaking while in immigration detention is turning his life around. He said while completing the course he has identified things that send him into a rage, such as family deaths. He doubted that he would have the necessary support in New Zealand to be able to continue his rehabilitation.
36. He was asked about his future plans once he has completed the necessary rehabilitation.. He said he has no real training as his ‘job’ was kickboxing. He would like to work in welfare to deter others from a life like his. He would also like to make movies about Maori culture.
Supporting witnesses
37. A statutory declaration was provided by Mr Aporo ‘s mother, Lucy Sassen Tui (Exhibit A4) who was present at the hearing but not called to give evidence. She wrote of the Applicant’s moral and financial support and his support to his half brother and his family. She believes that it will be sad if her son is not able to live in Australia and be here to support his daughter. She also believes that her family would be greatly affected if he were to be removed to New Zealand.
38. A statutory declaration was also provided by the Applicant’s half brother, Kamaloni Joshua Sassen (Exhibit A5). He wrote of the Applicant’s love and affection for his nieces and nephews, whom he sees fortnightly.
39. The Applicant’s former partner (the mother of his daughter) provided a statement (Exhibit A8). She confirmed that her daughter had believed her stepfather to be her natural father until the time of her baptism 2 years ago. The daughter has over recent months been enquiring about her father. She wrote:
Uuntil now [the daughter] has been unable to see her real father… I believe it would be in [the daughter’s] best interest if she was able to meet her real father, spend time with him and get to know him as her real father, preferably beginning in the near future since she is of an appropriate age to do so.
Psychiatric evidence
40. A report was provided by Dr Gary Banks, consultant clinical psychologist dated 1 October 2007 (Exhibit A1). The report was based on an interview and assessment sessions that Dr Banks conducted with Mr Aporo on 28 September 2007, lasting approximately 4 hours. Dr Banks was also provided with various documents relevant to Mr Aporo’s history. Dr Banks was unavailable to give oral evidence at the hearing as he was not presently in NSW. Dr Banks had administered a number of psychological tests and conducted an extensive clinical interview with the Applicant. He regarded the Applicant as a suitable candidate for treatment especially in relation to substance abuse and anger management, as this was likely to decrease recidivism. He noted that the first treatment for anger management was not until 1998-99 although the Applicant’s criminal history dates back to 1991 (sic).
41. Although the program was helpful it ended (because his prison term ended) when he was 2-3 months into it. Non-completers are generally more likely to re-offend than completers, in his view. He considered that if Mr Aporo’s anger management had been addressed earlier then his recidivism rate may have decreased. On the basis of his testing he considered that there was reason to suggest the Applicant will likely to return to his anti-social behaviour should he be sent back to New Zealand. He thought the Applicant had disorganised thinking and unusual problems dealing with reality. He considered that the Applicant’s lack of contact with his daughter may be not so much be an indication of poor parenting but may be consistent with his personality characteristic and history of dysfunctional and disturbed familial upbringing. He found the Applicant to have extremely poor verbal analytical and problem-solving skills.
42. He indicated that Mr Aporo recognises the problems in his life and has acknowledged the need for help. He notes that Mr Aporo appeared to be motivated toward treatment and that he further expressed a willingness to participate in a residential rehabilitation program. His observation was that “Mr Aporo should be considered for relatively intense rehabilitative treatment..” (Exhibit A1 p4).
43. Dr Banks goes on to examine the effect that visa cancellation will have on Mr Aporo’s daughter and family and also the disruption it will cause to current rehabilitative efforts. He says that while the Applicant was unable to provide evidence of having regular contact with his daughter “there is reason to believe that there is a bond between the father and daughter…” (Exhibit A1 p5). These are issues that I will examine in more detail when looking at the best interests of the child and other considerations.
44. The Respondent pointed out that the fact that Dr Banks was not made available for cross examination limited the weight that could be given to this report. I agree that having Dr Banks available to clarify the main points of his report and to expand on his opinion would have proved helpful. However, I am of the view that Dr Bank’s report is not controversial, in that he merely concludes that Mr Aporo needs to commit to intense rehabilitative treatment and that previous attempts toward his rehabilitation have been unsuccessful. I think that is a point on which both parties would agree. The fact that the Applicant contends that his unsuccessful rehabilitation efforts are the result of insufficient courses offered by the Department of Corrective Services or a result of there completion being cut short by the conclusion of his sentences is immaterial. The important consideration is whether there is sufficient evidence that the Applicant has been rehabilitated. The report provided by Dr Banks goes no further than to suggest that rehabilitation is needed and that deportation may result in inhibiting such rehabilitation.
45. I accept that the Applicant would benefit from the suggestions made by Dr Banks, however, the report gives minimal attention to the fact that the Applicant has had the past 18 years to reflect upon his behaviour and to modify it accordingly. The evidence is that the Applicant has yet to fully commit to completely rehabilitating. Dr Bank’s report merely outlines options for the Applicant if he were to display such commitment.
Applicant’s Submissions
46. The Applicant’s solicitor, Mr Lombard, adopted the submissions contained in the Applicant’s statement of facts and contentions and also provided to the Tribunal a copy of further written submissions outlining the Applicant’s arguments.
47. In summary, Mr Lombard conceded that the Applicant does have a long list of offences, but asked that consideration be given to his dyslexia and drug dependence as well as his family background. Further, Mr Aporo was never cautioned by the Department that his conduct may result in the cancellation of his visa.
48. Mr Aporo does not pose a threat to the Australian community as he has been seeking assistance to address his drug and behavioural issues and has undergone a number of programs to facilitate his rehabilitation. The Applicant contends that these programs evidence positive steps that he has taken toward rehabilitating. These steps, however, have been quite recent as Mr Aporo has not had the opportunity to receive proper treatment and counselling. Previous attempts have been hindered by his imprisonment. If he had received the required assistance and treatment then he would not have had further encounters with the law. Also, the presence of Mr Aporo’s family is a strong factor supporting his rehabilitation and mitigating against the risk of recidivism.
49. Mr Aporo has always presented as an exemplary family member to his younger brother, his nephews and nieces and to his mother. While it cannot be refuted that the actions of Mr Aporo have breached the trust placed in him by the Australian community upon the grant of his permanent residence visa, it is clear that if the community were fully informed of all of the applicant’s circumstances they may well be inclined to give him another chance.
50. Mr Aporo is a loving father to his daughter, who is ten years old. While Mr Aporo’s imprisonment has often hindered him being able to spend time with his daughter, he believes that she has a right to know who her father is and to have an ongoing relationship with him. The majority of Mr Aporo’s family reside in Australia and are Australian citizens. He is also involved in a relationship with an Australian citizen.
51. Mr Lombard also argued that the cancellation of Mr Aporo’s visa would effectively constitute an act of double jeopardy and that it would also breach Australia’s obligations under the International Covenant on Civil and Political Rights. He pointed out that Australia has international obligations to ensure that the Aporo family unity is protected.
52. Mr Aporo first came to Australia at the age of 10 and has been living continuously in Australia since the age of 15. He was raised here and he is familiar with the culture and the people. The removal of the Applicant from this country will have a devastating impact on his health and on his family. Accordingly, the Tribunal should find that the relevant factors of the protection and expectations of the Australian community and the best interests of the child as well as the other considerations (including Australia’s international obligations) weigh in favour of the Tribunal exercising its discretion to not cancel Mr Aporo’s visa.
Application of the Law and Findings of Fact
53. In this case the Applicant concedes that he does not pass the character test in S 501(6) because of his “substantial criminal record” within s 501(7).
54. It therefore remains for me to consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to cancel the Applicant’s visa. In exercising that discretion, I am to have regard to Part 2 of Direction No 21. 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.
…
55. Paragraph 2.3 sets out the primary 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.
…
Protection of the Australian Community
56. The Applicant contends that he does not pose any threat to the Australian community because he has been seeking assistance to address his drug dependence and behavioural issues.
57. The first issue to be considered is the seriousness and nature of the conduct .
58. It was submitted on Mr Aporo’s behalf that the vast majority of his criminal record relates to charges which do not fall into the ‘very serious’ category described in paragraph 2.6 of the direction.
59. Paragraph 2.6(f) notes that crimes of violence against persons are to be treated as very serious. On the 15 March 1999 the Applicant was sentenced to 2 years and 6 months imprisonment for threatening a person with the intent of influencing a witness to a serious offence, and for a period of 12 months for assaulting an officer in the execution of his duty. He appealed these convictions and on 23 February 2000 (G pp99-112) as a result of the appeals his sentence for threatening a witness was reduced to 1 year and 6 months. Justice Grove of the Criminal Court of Appeal said of the Applicant (G p164):
It has to be said that the applicant’s record reveals him to be something of a thug. I am omitting reference to numerous convictions in Children’s Courts but, leaving aside other offences, he has been before the courts in 1995 for assault, in 1995 a second time for assault, in 1997 for counts of assault, assault occasioning actual bodily harm and affray, the total counts of assault were four and of occasioning actual bodily harm two. Again in 1997 he was before another court and again in 1998.
60. His most recent conviction for an assault was confirmed on 7 July 2005 at Manly District Court where he was sentenced in lieu to 12 months imprisonment for assault occasioning actual bodily harm.
61. I consider that these offences fall into the category of serious offences. The comments of Justice Grove are indeed scathing and he goes onto note that it would appear that the Applicant meets the “description of a recidivist” (G p164). In light of the Applicant’s past record I would agree.
62. Paragraph 2.7 states that it is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Therefore, I take into account the extent of a person’s criminal record, including the number and nature of offences, the time between offences and the time that has elapsed since the most recent offence and the repugnance of the crime.
63. The Applicant’s record dates from 1989, as a juvenile, and almost immediately upon his taking up permanent residence. There is barely a year since that time when he has not been before the courts on one or more criminal charges. By my calculations he appears to have spent nearly 2 years in prison since 2002. A similar amount of time was served prior to that time. His most recent conviction was only a few months ago. He was released from prison in March. He has not offended since then (but he has been in detention since July). His ‘conduct’ to date has been a pattern of continual offences: some violent and some drug-related. Others, may be able to be benignly described as ‘traffic offences’ (eg multiple offences of driving while unlicensed offences). In my view his conduct demonstrates a persistent disregard for even some of the most basic and commonplace laws.
64. In considering mitigating factors in accordance with paragraph 2.8(a) I was asked to take into account a number of matters: his dyslexia and drug dependence, as well as his family background. I accept that he is disadvantaged by his dyslexia and that he has long-standing drug dependence. I also accept that his early family life was dysfunctional.
65. The next issue for me to consider is the risk of recidivism. In that regard it was said that Mr Aporo has attempted to address his drug dependency since July 2005 until his detention in July 2007.
66. The Applicant contends that his attempts at rehabilitation have been hindered due to his imprisonment. Mr Aporo did not undergo treatment and counselling for his drug dependence and behavioural issues until his imprisonment in 1999 although his encounters with the law date back to 1991. The Applicant contends that if he were to have received assistance earlier, he would not have had those further encounters with the law. Dr Banks only speculated that that may be the case. I have previously commented on the conclusions drawn by Dr Banks.
67. Mr Aporo had attended the Sydney Road Centre in 2005. He relapsed on his release from prison. This does not bode well for rehabilitation when he is unsupervised. He subsequently received further treatment in prison and is currently undergoing treatment while in detention.
68. His evidence was of a number of events that were (positive) ‘turning points’ in his life. Unfortunately, none has caused him to give up his criminal activities. As previously stated, Mr Lombard in submissions pointed to the presence of the Applicant’s family as a strong factor supporting his rehabilitation. While there is no suggestion that they are not a supportive family unit, there presence to date has had little impact on the Applicant’s offending behaviour. There can be little confidence, given his history, that his rehabilitation from drug use will be similarly successful.
69. In relation to the protection of the Australian community, I am also required to consider the question of general deterrence, that is, whether the visa cancellation would prevent or inhibit the commission of similar offences by other persons: paragraph 2.11. The deterrent effect of a particular decision is difficult to anticipate, however other visa holders should be on notice that there is no place here for conduct which demonstrates a pattern of unacceptable behaviour.
70. It was also submitted that Mr Aporo has never been cautioned that his conduct may result in the cancellation of his visa and therefore the corrective value of that threat has not been applied in his case: paragraph 2.10(a). A half-hearted submission was made that there was possibly some issue of estoppel by representation in that the Minister failed to issue a warning at the time of the applicant’s re-entry into Australia in 2000, 2001, 2002, 2004 and 2005 (see G Documents pages 53-60), so that he did not have the opportunity to correct his conduct. Needless to say, I have given consideration to the fact that Mr Aporo had not been previously warned of visa cancellation. Mr Aporo has been imprisoned and fined many times over the years with apparently little or no deterrent effect on his committing further offences. It is doubtful, in my view, that a warning would have made any difference to his conduct.
71. I accept that Mr Aporo has made a genuine effort over the last 12 months to address his behavioural issues, including undertaking drug dependency treatment and anger management courses. However, the evidence is that over the past 18 years the Applicant has engaged in activities that demonstrate a blatant disregard for the laws of the Australian community. He has repeatedly been charged with and convicted of numerous criminal offences, some resulting in prison sentences of 12 months or more. The report by his Probation and Parole Officer, Ross Murdoch, for the Department of Immigration on 29 May 2007 ( G p143-145) concludes that “Mr Aporo has been assessed as presenting a high risk of re-offending” (G p144). While it appears that since this time Mr Aporo has made some progress I find that Mr Aporo is at least at a medium to high risk of re-offending.
Expectations of the Australian Community
72. Paragraph 2.12 states in part that:
…
Visa refusal or cancellation … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
73. I was referred to the recent decision of Stevanovic and Minister for Immigration and Citizenship [2007] AATA 1427 (14 June 2007) which adopted the test of Deputy President Block in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs[2002] AATA 458 “that it is for the Tribunal to consider whether middle of the road reasonable members of the Australian community who do not hold extreme views, with knowledge of the facts before the Tribunal, would expect an applicant to be allowed to remain in the community” (Stevanovic at para 48)
74. In the matter of Stevanovic the Tribunal also made reference to comments of the Federal Court in Nystrom v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 143 FCR 420 and what has been referred to as ‘disturbing applications’ of section 501. The ‘disquiet’ expressed by the Federal Court in Nystram concerned, to a large extent, the fact that the applicant in the matter had been entirely raised in Australia and could be described as “an alien by the barest of threads” (at p422).
75. It was conceded that by his actions Mr Aporo has breached the trust placed in him by the Australian community upon the grant of his permanent residence visa. Further, it was conceded that the majority of the Australian community expect those who come here to obey our country’s laws.
76. I was asked to note that breaches of some laws are considered relatively minor and may even be tolerated, while others, such as drug offences are not. I was referred to Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100 (3 February 2005) where the Applicant was a drug trafficker. There the Tribunal, after reviewing a number of criminal cases referred to the quality of mercy. I was asked to be similarly ‘merciful’. I have previously commented on the nature of the offences committed by Mr Aporo and while I do regard them as serious I certainly do not regard them to be of a henious nature. I have given consideration to some of the unfortunate circumstances of Mr Aporo’s situation and I think that the community would expect me to do so. However, I do not think that community expectations would think it appropriate for a non-citizen who has consistenly flouted Australian laws to be given unlimited opportunities to improve his behaviour.
77. It was further submitted that if the Australian community were fully informed of all of Mr Aporo’s circumstances - in particular the distressing childhood, late diagnosis of dyslexia, unresolved psychological issues and the struggle to overcome them – the community’s abhorrence of his criminal history would be tempered by the knowledge of his circumstances and it would not expect Mr Aporo’s removal from Australia and that he deserves a ‘fair go’. I do not consider the community knowledge of his circumstances would be likely to outweigh the community’s disapproval of his conduct.
78. This is not a matter like Stevanovic or Nystrom . In each of those matters the Applicant had been entirely brought up in Australia and it was only happenchance that he was not born here. Each was only an alien by the ‘barest of threads’. I accept that the expectations of the Australian community may well differ in the case of an applicant whose circumstances imitate or are substantially similar to those outlined in Stevanovic. This is not such a case. The Applicant was 15 or 16 years old when he came to live in Australia permanently. Almost immediately he was in trouble. Mr Aporo has already had the benefit of the tolerance from the Australian community when his personal circumstances appear to have been taken into account on sentencing.
The Best Interests of the Child
79. The third primary consideration is the best interests of the child. I am guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
80. The Applicant contends that it is in the best interests of his 10 year old child if he were to remain in Australia. He also has an ongoing relationship with his nieces and nephews under the age of 18.
81. His evidence about his relationship with his daughter was somewhat unclear. It is inescapable that one reason preventing him seeing his daughter more often is his frequent incarceration. It appears though that she knows of him and is inquisitive about him. He has seen her at football matches but does not appear to have actually established a relationship with her in the last 10 years. He does not provide for her financially and she is in a stable family environment. I accept though that the child’s mother considers that it would be in the child’s best interest if Mr Aporo were to remain in Australia. It was submitted that he is regretful that he has missed out on periods of his daughter growing up but would like to opportunity to be there for her now. There was, however, no evidence that since his most recent release from prison (and before detention) he made any attempt to contact her.
82. It was submitted that the Applicant’s daughter has a ‘right to know who her father is’. This is a very conservative aspiration. Undoubtedly she ‘has a right to know who her father is’ and there is no impediment to this by his being geographically removed. The Applicant could maintain contact with her via modern communication and I would think it possible for her to visit him in New Zealand if she so desired. It was submitted that Mr Aporo also has a right to ‘be there for his daughter, to provide her with the love and guidance she deserves’. The Applicant has court-ordered access rights to his daughter on a weekly basis, and contends that his removal from the jurisdiction will frustrate the court order and will deny him his legal right to see her. This would be an important consideration were it not for the fact that Mr Aporo does not appear to have previously availed himself of this entitlement.
Other considerations
83. Paragraph 2.17 provides that other considerations may be relevant but they are to be given less individual weight than that given to the primary considerations. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
84. The Applicant contends that the extent of disruption to his family unit would be great due to the fact that the remaining members of his extended family (his child, mother, brother and nieces and nephew) could not reasonably be expected to join him in New Zealand. He is not however in a stable domestic arrangement with any of those persons.
85. Mr Aporo is in a relationship with an Australian citizen, although the details of the relationship were scant. No statement was provided by his girlfriend. I accept that his removal will be likely to further affect their relationship. Already though they have not lived together for some time and she resides interstate.
86. The Applicant contends that his daughter, mother, brother, girlfriend and nieces and nephews will face considerable hardship if he is removed from Australia. I do not accept this to be the case. They have apparently managed during his frequent and lengthy incarcerations.
87. In relation to whether there is evidence of rehabilitation and any recent good conduct, I accept that Mr Aporo has sought assistance for his drug dependence. He is currently on buprenorphine program and has also sought counselling. He has undergone an anger management course while in prison but was not able to complete it due to his release from prison. Mr Aporo is currently undertaking a course in anger management at Villawood Detention Centre.
88. I was referred to Australia’s International Obligations, and in particular the International Covenant on Civil and Political Rights – ICCPR.
89. Article 17 of the ICCPR prohibits arbitrary interference with one’s family. The application of the cancellation provisions of the Migration Act is in no way an arbitrary interference with a family.
90. I was referred to the decision of McHugh J in Chu Kheng Lim v Minister for Immigration , Local Government and Ethnic Affairs (1992) 176 CLR 1 at para 39 in support of a submission that deportation may also have a punitive aspect, and particularly so when the only adverse consideration leading to the cancellation of a visa amounting to deportation, is a visa holder’s criminal history and that none of the available decisions in respect of the Applicant suggest that any account was taken of his liability to losing his visa status in Australia.
91. I was also referred to the Convention on the Rights of the Child (CROC). Article 3 of CROC binds all States, without reservation that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administration authorities or legislative bodies, the best interests of the child shall be a primary consideration’. It should be said that this is not an ‘action concerning children’ anticipated by the CROC. In any event, the best interests of the Applicant’s child have been taken into account as a primary consideration.
Conclusion
92. In Stevanovic (at para 51) the Tribunal referred to the Commonwealth Ombudsman’s report of February 2006, where he said:
(a)4.7 The quality of DIMA’S administration of s 501 cases could be significantly enhanced if the recommendations outlined above are accepted and implemented.
(b)4.8 Even if this were to occur, there is a remaining issue to do with fairness and reasonableness of the extensive application s 501 to long-term permanent residents. This concern is the more acute in cases where s 501 has been used in circumstances where s 201 could not be used. It is ultimately for the Minister to decide when s 501 is to be used, but it is nevertheless appropriate in this report to question whether s 501 should be applied to a person who meets the following criteria:
(i)arrived in Australia as minor and spent his or her formative years in Australia
(ii)has effectively been absorbed into the Australian community, using criteria similar to those considered in relations to s 34
(iii)has strong ties – particularly strong family ties – to the Australian community
(iv)has no ties with the likely receiving country and return there would impose hardship in terms of language, culture, education and employment
(v)has family members in Australia who would face hardship as a result of the visa holder’s separation from them
(vi)could not be removed under s 200 criminal deportation provisions
(vii)would not constitute a significant risk to the Australian community if released from detention.
93. Addressing these issues in the present case, I note that while the Applicant arrived in Australia as a minor he did not spend his formative years in Australia. It is difficult to say that he has effectively been absorbed into the Australian community given his conduct, which is outside community norms, and in any event would not come within s 34. He has strong family ties to Australia but there was no evidence of ties to the Australian community beyond that. He has few ties with New Zealand but return there would not impose hardship in terms of language or culture.
94. Looking broadly at ‘education’, he may have some difficulty sourcing a rehabilitation program but it is fair to assume that New Zealand would have similar facilities to those here. As to employment, the Applicant has no particular skills. His professed interest in welfare would, no doubt, be equally relevant in New Zealand. Film making about Maori culture would be easier, I would have thought, in New Zealand.
95. I accept that his mother may be disappointed at further separation from her son but there was insufficient evidence for me to be satisfied that she would ‘face hardship’ as a result of the Applicant’s separation from her. As to the Applicant’s daughter, the evidence was that she was in a stable family with her mother and stepfather. While separation from her natural father is less than ideal, there was no evidence whatever of a level of dependence upon him that would cause her to ‘face hardship’ in his absence.
96. In summary therefore I have found that there remains a threat to the Australian community because of the Applicant’s long history of very serious and other offences. Despite attempts at rehabilitation I find the evidence unconvincing and that if released there remains a risk that the Applicant will fall back into his pattern of offending behaviour. I consider that deterrence to other aliens in relation to unacceptable conduct is desirable and information about the Applicant may spread through his relatives to the New Zealand ex-patriot community. I consider the Australia community would expect him to have his visa cancelled in circumstances where he concedes he has breached the community’s trust.
97. As to the best interests of his daughter, he has had minimal contact with her in 10 years and his geographical removal will make little change. It cannot be said that her best interests require his remaining in Australia. In any case, I find that the primary considerations of community protection and expectations outweight the best interests of the child in this case.
98. In all the circumstances I find it inappropriate to exercise the discretion in S 501 to set aside the decision of the Respondent.
DECISION
99. The decision under review is affirmed.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg
Signed: ..............................[sgd]............................................
Renee Wallace, AssociateDate/s of Hearing: 9 October 2007
Date of Decision: 18 October 2007
Solicitor for the Applicant: George Lombard and Anjilla Khwaja
Solicitor for the Respondent: Tessa Van Duyn, Clayton Utz
APPENDIX A
List of Exhibits tendered on 9 October 2007A1 – Report of Dr Gary K Banks (Consultant Clinical Psychologist) dated 1
October 2007.
A2 – Letter of Jane Drane (Clinical Nurse Specialist, Sydney Road Centre, NSW
Health) dated 24 September 2007.
A3 – Letter of Giuliano Meneghetti (Clinical Psychologist, Queenslcliff
Community Health Centre, NSW Health) undated.
A4 – Statutory Declaration of Lucy Sassen Tui dated 26 September 2007
A5 – Statutory Declaration of Kamaloni Joshua Sassen dated 26 September
2007
A6 – Statutory Declaration of Mita Aporo dated 2 October 2007
A7 – Family Court of Australia – Orders Issued by the Registry
A8 – Letter from Loretta Maseki dated October 2007
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