BUNNY KAHUKURA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 556

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2112

GENERAL ADMINISTRATIVE DIVISION		)
Re		BUNNY KAHUKURA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N BELL, Senior Member

Date 29 July 2009

PlaceSydney

Decision  The decision under review is affirmed

.....................sgd........................

Ms N BELL
  Senior Member

CATCHWORDS

IMMIGRATION – visa cancellation – whether applicant fails to pass the character test –  substantial criminal record - whether Tribunal should exercise discretion to cancel the applicant’s visa – Direction 41 applied – primary considerations – other considerations – decision under review affirmed.

RELEVANT ACT/S:

Migration Act 1958: s 499, 500, 501

…

CITATIONS

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

…

OTHER AUTHORITIES

Direction No 21 [superseded 15 June 2009 by Direction No 41]

Direction No 41

…

REASONS FOR DECISION

29 July 2009 Ms N BELL, Senior Member         

1.       The Applicant, Bunny Kahukura last entered Australia from New Zealand on            31 December 2007 as the holder of a Class TY, Subclass 444 Special Category (Temporary) visa.  Mr Kahukura’s visa was cancelled by the Minister on 23 March 2009, on the basis that he does not pass the “character test”.  Mr Kahukura is currently in detention at Villawood Detention Centre.

2. Section 501(2) of the Migration Act 1958 (the Act), provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”.  Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”.  “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more.  There is no dispute that in August 2002 Mr Kahukura was sentenced in New Zealand to a term of imprisonment of two years and three months.  It therefore follows that he does not pass the character test.

3.       The discretion to cancel Mr Kahukura’s visa is thus enlivened.  In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act (the Direction). This Direction superseded Direction 21 and came into effect on 15 June 2009.  The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

4.       The primary considerations in the Direction are:

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)   the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)   whether the person was a minor when they began living in Australia;

(c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)   relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

5.        These considerations are elaborated on by a range of factors to which regard must be had. The additional “Other” considerations are indicated by the headings that appear below.

protection of the australian community

5.       The Direction notes two matters relevant to this consideration: the seriousness and nature of the conduct and the risk that the conduct may be repeated.

6.       The crime for which Mr Kahukura was convicted in August 2002 was described by the sentencing judge (at G p80) in the following terms:

“The facts are really accepted in their essence.  I do not intend to traverse those in any great depth except to simply say that you took her (Mr Kahukura’s former partner) out into the bush at Mangakino and told her that you were going to do that and take her where no one will find you, you said, and you would kill her. You drove out about seven kilometres along Waipapa Road and then into an overgrown bush track. The track finally stopped and there was a clearing. There was a burnt car upside down in the clearing. You had with you a large machete that you removed from the van. I accept that the charge that originally was laid with respect to the assault with the machete is no longer before the Court. It was withdrawn. It seems that the Police believe that there was no actual use of that in a direct way. It was simply part and parcel of the overall circumstances in terms of the threat. You then said to her after you opened the passenger’s door for her to get out of the van because you were going to kill her. She refused to get out of the van. She subsequently ran and hid behind the burnt out car and it was at that point that you drove the vehicle at her in an attempt to run her over. She jumped out of the way. You drove round several more times attempting to run her over. You rammed the burnt car on the opposite side of where she was, and she had to move out of the way. Finally things did calm down and she managed to talk you into taking her home. You said that you wanted to crash into an oncoming car. She was obviously traumatised in the way that that is referenced in the victim impact statement. So it is on those facts that you are to be sentenced.

7.       I also note the sentencing judge’s comment that of all of the cases of threats to kill that he has dealt with in 25 years on the bench this one was the most serious.

8.       In addition, I note that the Direction states that crimes involving violence are of special concern to the welfare and safety of the Australian community.  The crimes of murder and grievous bodily harm are both mentioned specifically as examples of serious offences.  Mr Kahukura was convicted of threats to do both in August 2002.

9.       Mr Kahukura was also convicted of Common Assault (Domestic) in 1996 and Male Assaults Female (Manually) in 1997.  In addition, he was convicted of Cultivate Cannabis in both 1988 and 2000.  He maintained he has not used cannabis since 2002.

10.      When asked about the circumstances of the August 2002 offence, Mr Kahukura said that it was a very stressful time for him because he was trying to establish a decorating business and had the care of one of his three children, aged thirteen years, after he and his partner (on whom the crime was perpetrated) had separated.  He said that he “lost it” and blamed his former partner.  I note his evidence that his convictions in 1996 and 1997 were also in respect of assaults on his partner and his evidence that his “possessive” and controlling attitude towards his partner was behind them.

11.      There can be no doubt that the 2002 offence was a serious crime. It is more difficult to assess the risk of the conduct being repeated.

12.      Mr Kahukura said that the two years and three months that he spent in prison had a very calming and stabilising effect on him. He is reported to have been a model prisoner.  He had no formal counselling or anger management instruction, but says he spoke regularly to the priest who visited the goal.  He expressed remorse and insisted he would never engage in violent behaviour in Australia and has established a new life here.  Mr Kahukura’s former partner described him, in a letter dated 21 August 2008, as having “changed mentally and physically” and said he is more patient, calm and understanding and so much so that she allowed him to reside with her for a period during which he saved money to come to Australia.

13.      In his evidence to the Tribunal, Mr Kahukura spoke of the gangs that are prevalent in New Zealand, and one in particular, called the “Mongrel Mob” of which his brother is a full member.  He said it is impossible to escape the gangs which have chapters all over New Zealand, but although he was often invited to “wear colours” he always declined.  He said he has given limited support to the gangs by preparing cannabis for sale by them and by assisting with social events and taking part in football matches organised by them.  Mr Kahukura said the widespread existence of the gangs is his main reason for not wanting to return to New Zealand and was his main reason for wanting to come to Australia in the first place.

14.      He said that Australia has given him a great chance and has been kind to him.  He referred to his good employment record and the advancement he has achieved.  I accept that he has been successful at maintaining and advancing in his employment and I accept as true the references he tendered in evidence in this respect.

15.      I also note the personal written references Mr Kahukura tendered in evidence or contained in the G documents from:

● Mr Peter Milne, work colleague, who has known Mr Kahukura for approximately two years;

● Mr John MacPhail, Dennis Trathen and Yannie Georgaros, work colleagues, who have known Mr Kahukura for almost two years;

● Mr Charlie Kahukura, first cousin, who arrived in Australia around the same time as Mr Kahukura;

● Ms Lisa Heller, his former partner, who has known Mr Kahukura for 25 years (G p55);

● Mr Mike Kearney - Feedmill Manager at Inghams Enterprises Pty Limited (G p56);

● Ms Lyndal Walker – current partner, who has known Mr Kahukura for over four years (G p57);

● Mr Anthony Roycroft, Area Manager/ friend, who has known Mr Kahukura for a period of over 18 months (G p58);

●  Mr Todd Brunsdon, work colleague (G p59).

16.     Of Mr Kahukura’s work colleagues and relatives, only Mr Milne made reference to Mr Kahukura’s convictions. He wrote “he has told me about what has happened in the past and he wants to start a new life in which I think he has succeeded.”

17.     Mr Kahukura tendered in evidence reports dated 22 June 2009 and 9 July 2009 by Mr Ilan Cohen, Clinical Psychologist.  Mr Cohen’s first report assessed the risk of Mr Kahukura re-offending as low and scoring consistent rates of nil across a range of factors including substance abuse, repeated violent offences, constant anger problems, history of violence, tendency to minimise past crimes and psychiatric history.  However, it was apparent in the history taken by Mr Cohen that he had either not obtained or not taken into account Mr Kahukura’s violent offences in 1996 and 1997.  In his supplementary report of 9 July 2009 he noted those offences altered the scores in relation to the factors mentioned above and increased the score in relation to repeated violent offences.  He maintained that Mr Kahukura has a low risk of re-offending.

18.     In his telephone evidence to the Tribunal, Mr Cohen said that the scores he recorded in his report were according to a tool of his own devising, based, he said, “on the literature”.  He suggested that if Mr Kahukura would give an undertaking that he would not use any substances and a promise that he would be of good behaviour then he should be allowed to stay in Australia.

19.     I did not find Mr Cohen to be a persuasive expert witness. He provided no explanation for the “scores” he gave Mr Kahukura, appeared to have taken an inadequate history in the 60 to 80 minute interview  he had with him, and seemed to be convinced that abstinence from “substances” together with an “undertaking” from Mr Kahukura would negate all risk of violent re-offending.

20.     I also note that on entering Australia in April 2007, Mr Kahukura gave false information on his passenger entry card by indicating he had no criminal convictions.  Mr Kahukura said his motivation for doing this was that he thought he would not be allowed into Australia if his convictions were disclosed.

21.     I am mindful of the comment of President Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. The Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk. I consider that the risk involved in this case is real, in that it is not far fetched or fanciful, and it is clear that, given the violent nature of the offences, any repetition could cause harm.

22.     Based on the seriousness and pattern of Mr Kahukura’s previous convictions, his stated reasons for committing the offences and his previous general conduct including giving a false answer on his passenger card and lending support to a gang in New Zealand, I consider there is a real risk of his re-offending or committing some other violent offence.

23.     This consideration weighs heavily against Mr Kahukura.

age when began living in australia

24.     This consideration does not assist Mr Kahukura, who was 41 years of age when he first entered Australia.

length of time resident in australia

25.     Mr Kahukura has only lived in Australia since 2007 and lived all his previous life in New Zealand.  This consideration does not weigh in Mr Kahukura’s favour.

international obligations

26.     Mr Kahukura’s three children live in New Zealand with their mother and all are over the age of 18.  No issue arises under the Convention on the Rights of the Child.

27.     Mr Kahukura has returned to New Zealand from Australia twice since 2007.  He gave no evidence of any harm that would await him on his return.  However, I note a comment by him on a Personal Details form submitted to the Department in August 2008, to the effect that some of his former partner’s family members have threatened him and that one of them is a gang member.  I also note that he says he is on good terms with his former partner now and speaks to her every week on the telephone. Further, her letter confirms that they are now on good terms.  I consider that Australia’s non-refoulement obligations do not arise.

other considerations

family ties

28.     Mr Kahukura has a first cousin and his spouse, two uncles and one aunt in Australia.  His children, his stepmother, his siblings and numerous cousins, uncles and aunts live in New Zealand.

29.     Mr Kahukura is in a relationship with the New Zealand woman with whom he came to Australia.  I note that he said that his current partner has a problem with alcohol and this has raised some issues in their relationship and caused them to suspend it on occasion.  However, he said he speaks to her on the telephone every day and their relationship is continuing.  He said, however, that whereas initially she was prepared to return to New Zealand with him if he is forced to return he now thinks that she would stay in Australia because her sister wants her to stay here.

30.     This consideration does not assist Mr Kahukura, given that most of his family is in New Zealand and his relationship in Australia appears to be somewhat unstable.

age

31.     Mr Kahukura is 44 years old and living without any need for aged care.  This consideration does not assist him.

health

32.     On his own evidence, Mr Kahukura is in good health and has no condition that would weigh against cancellation of his visa.

links to new zealand

33.     Mr Kahukura’s links to New Zealand are strong.  The presence in New Zealand of his children, stepmother and siblings and the fact that, but for the past two years, he has lived there all his life make this consideration weigh against him. In reaching this conclusion, I also note his evidence that it continues to be his plan to return to New Zealand in 2016, after he has earned money in Australia. He said that New Zealand will always be his home.

hardship

34.     Mr Kahukura’s immediate family members are all in New Zealand.  Until recently, his partner was willing to accompany him there.  There is no evidence of any person in Australia being dependent on Mr Kahukura for support.  This consideration does not weigh in his favour.

level of education

35.     Mr Kahukura, while understandably nervous and unsure of some things, was a good advocate on his own behalf.  He was articulate and marshalled his evidence well and appeared to understand the issues before the Tribunal.  In my opinion, he was not disadvantaged by his level of education.

36.     Mr Kahukura has obtained a number of certificate qualifications in his employment with Inghams Enterprises Pty Ltd and during his period in goal in New Zealand.  There is no doubt that he is an exemplary employee and that his conduct in goal after his conviction was excellent.  This consideration weighs in his favour.

formal advice in the past

37.     There is no evidence that Mr Kahukura was ever advised by an officer of the Department of the possibility of visa cancellation.  I note in this respect that the conduct that has enlivened the discretion occurred some years prior to his arrival in Australia.

conclusion

38.     Of the primary considerations in the Direction, none weigh in Mr Kahukura’s favour and the consideration of the protection of the Australian community weighs heavily against him, given the seriousness of his offence and the risk, not far fetched or fanciful, that he may re-offend.

39.     Of the other considerations in the Direction, only the consideration concerning his attainment of some trade certificates weighs in his favour.  In his employment and in the pursuit of those qualifications he has been exemplary. However, this is not sufficient to overcome the primary consideration of the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence.

decision

40.      The decision under review is affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ..................................sgd................................................
  Felicia Daniele: Associate

Date/s of Hearing  16 July 2009
Date of Decision   29 July 2009     
Solicitor for the Applicant           Self - Represented
Solicitor for the Respondent      Mr T Eteuati, Clayton Utz Lawyers