CASEY TUKI and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 566

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/1868

GENERAL ADMINISTRATIVE DIVISION		)
Re		CASEY TUKI

Applicant

And  MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 29 July 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – cancellation of temporary visa on s 501 character grounds – substantial criminal record – applicant currently in gaol – more than 12 months imprisonment – applicant was a minor when he began living in Australia – juvenile offences within the same year of arrival – best interests of the children – consideration of relationships formed – no serious health or language concerns – significant risk of re-offending – balance of considerations – discretion to cancel visa exercised against the applicant – decision affirmed.

Migration Act 1958 (Cth)

REASONS FOR DECISION

29 July 2010 Senior Member Bernard J McCabe

1. Mr Casey Tuki, the applicant, is a New Zealand national who resides in Australia. He has a lengthy criminal history, and he is currently in gaol. The Minister for Immigration and Citizenship decided to cancel Mr Tuki’s visa pursuant to s 501 of the Migration Act 1958 (Cth) (“the Act”) on character grounds. If the cancellation is affirmed, Mr Tuki will be required to leave this country.

2.      I am satisfied Mr Tuki’s visa should be cancelled. I explain my reasons below.

The factual background

3.      Mr Tuki was born in New Zealand in 1982. He came to Australia with his parents and some of his siblings in 1996. He was issued with a temporary visa on arrival. He was in trouble with the law soon after.

4.      The Minister tendered summons records showing the applicant was first before the courts in 1996. His criminal record from that point until 2005 includes a steady stream of comparatively minor offences, including several burglaries, thefts from motor vehicles, driving offences and encounters with the police that resulted in charges of obstruction. The records also show the applicant often failed to comply with his bail and probation obligations. The applicant told me the crime was associated with a worsening drug problem.

5.      Things got much worse in 2005 when the applicant was involved in a home invasion. Mr Tuki and two others barged their way into another man’s home and stole his property. The occupant of the house was assaulted in the course of the invasion. One of the attackers carried a machete, although the applicant said that was nothing to do with him. Some of the property was later recovered by police at the applicant’s residence.

6.      The criminal behaviour continued until July 2007 when Mr Tuki was arrested and taken into custody following a break-in at a public library. He subsequently faced court in July 2008 over the home invasion. He was convicted of robbery with actual violence and burglary. He was sentenced to three years imprisonment in respect of the first offence and two years and six months in respect of the second offence. Mr Tuki was also convicted on the same day of receiving stolen goods and breaking and entering with a view to stealing a safe from the library. Those offences were committed in 2007. He was sentenced to 12 months and 15 months imprisonment in respect of those offences. The sentences were to be served concurrently with the sentence handed down in respect of the home invasion. Given he had already been in gaol for the better part of a year, the court decided to release him on parole on the day he was sentenced.

7.      Between 2005 and being taken into custody 2007, Mr Tuki routinely failed to comply with bail and probation obligations and other undertakings to the court. He made a nuisance of himself by giving false names to the police on several occasions. He also committed minor drug offences and breached domestic violence orders. The results of drug tests confirm he continued to use drugs even after he was taken into custody. Unsurprisingly, the bad behaviour continued once he was released from gaol in 2008.

8.      Mr Tuki routinely failed to comply with his obligations while on parole, and he failed a number of drug tests. He attended a drug counselling program but it is apparent that his drug use (mainly marijuana, although sometimes amphetamines) continued. His parole was finally suspended in July 2009 but he did not comply with the direction to surrender himself to the police. A month later, he broke into a shop. He was taken into custody the following day. He remains in gaol after his parole was indefinitely suspended and he was sentenced to a further term of imprisonment following the break-in that occurred in July 2009.

9.      The Minister provided me with records from the gaol suggesting Mr Tuki was a disruptive prisoner at first. But the records suggest he subsequently became much better behaved. That evidence is consistent with the statements provided by several of Mr Tuki’s fellow prisoners, although these must obviously be treated with caution.

10.     Mr Tuki appears to have made some progress in dealing with his drug problem, although he tested positive to illegal drug use as recently as 30 January 2010. Mr Tuki said he resorted to drugs on that occasion as a response to his sense of disappointment and despair when he learned of the Minister’s decision to cancel his visa. That sort of reaction does not bode well for his life after prison where he can expect to face the same temptations and challenges he encountered before, but he claims the drug problem is now substantially under control. I heard evidence that he plays a positive role in prison and helps to counsel other offenders. I note he received a letter of reference from the president of the Queensland Maori Society confirming Mr Tuki had played a positive role in supporting young people from the Maori community in the past. That help extended to making sure young offenders turned up to court and satisfied their obligations. That account is difficult to reconcile with the evidence that Mr Tuki routinely ignored his own obligations before he went back to gaol, but I have no reason to doubt the sincerity of the opinions that were expressed in the letter.

11.     I was not provided with any evidence from psychologists or social workers or other specialists who could shed any light on whether the applicant was rehabilitated or likely to re-offend. I have only got the applicant’s word that he has seen the error of his ways, and undertakings that he will change. His mother says she will offer whatever support she can, and his fiancé looks forward to welcoming him home and living as a family. Mr Tuki appeared to be particularly motivated by a desire to re-establish regular contact with his three children who now live with their mother. He said he planned to see a solicitor upon his release from prison with a view to formalising access arrangements. He also spoke warmly of his relationship with his fiancé’s two children, who wrote letters of support describing their relationship with Mr Tuki. He has completed some education courses while he has been in gaol and is hopeful of obtaining work.

The legislative framework

12. Section 501(2) of the Act says the Minister may cancel a person’s visa if the Minister is not satisfied the person passes the character test. Section 501(6)(a) says a person does not pass the character test if the person has a substantial criminal record within the meaning of s 501(7). There is no dispute that Mr Tuki has a substantial criminal record because he was sentenced to a term of imprisonment – indeed, several terms – of 12 months or more.

13. A decision-maker considering whether or not to exercise the discretion to cancel a visa in s 501 must comply with a ministerial direction issued pursuant to s 499 titled “Direction 41 – Visa Refusal and cancellation under s 501” (”the Direction”). Paragraph 10 of the Direction sets out four primary considerations. Paragraph 11 sets out other considerations that might also be relevant. I will discuss each consideration in turn, beginning with the primary considerations.

Primary consideration 1: Protection of the Australian community

14.     Paragraph 10 refers to the need to protect the Australian community from an unacceptable risk of harm at the hands of non-citizens who engage in criminal activity or other serious conduct. Paragraph 10.2 requires that I look to:

·the seriousness and nature of the conduct; and

·the risk that the conduct may be repeated.

15.     I have already referred to Mr Tuki’s criminal history. While many of the offences are relatively minor, there is a pattern of escalation which is presumably linked to the applicant’s lengthy history of drug abuse. Some of the offences were committed while the applicant was on probation or parole in relation to other offences. The home invasion offence is of the most concern. It involved violence. Crimes of violence are especially abhorrent. It is true that no one was seriously injured in the incident, and the applicant says he was not the instigator of what occurred. But the sentencing judge’s remarks confirm that Mr Tuki’s participation in the crime should weigh heavily against him. His Honour said:

That sort of behaviour strikes at the very nature of our democratic society…Home invasions are a very serious blight on our society.

16.     I am especially worried that Mr Tuki’s criminal conduct may continue after he is released from gaol. He did not demonstrate clear insight into any of his offences when he was giving evidence. Indeed, he testified he did not remember the circumstances of most of the offences because of his drug use. The most recent offences were committed in late 2009. His poor impulse control was on display again in January this year when he resorted to drugs while in prison to cope with the bad news about the visa cancellation. I also note he has a long history of failing to comply with his bail, probation and parole obligations.

17.     I accept that comments from correctional officers suggest Mr Tuki has made recent progress towards rehabilitation. He appears to have settled down while in gaol. I also accept that he is likely to have better family support in the form of his fiancé who wants to establish a home and support Mr Tuki in his efforts to avoid drugs, be a father and get a job. I think he is sincere when he says that is what he wants, most obviously because he now understands his criminal conduct has been an obstacle to a proper relationship with his children. But there is little in the way of objective evidence to reassure me he has overcome the drug problem that probably drove his criminal history. Given the long-standing pattern of misconduct that has continued until comparatively recently and the absence of other evidence that clearly suggests he has reformed and dealt with the drug problem, I think there is a significant risk that he will re-offend. It follows that this consideration weighs heavily against Mr Tuki being allowed to remain in Australia.

Primary consideration 2: the applicant was a minor when he began living in Australia

18.     Mr Tuki came to Australia from New Zealand when he was 14 years old. It follows that he has spent some of his formative years in this country, which gave him the opportunity to establish ties here. I accept this consideration weighs against exercising the discretion to cancel his visa.

Primary consideration 3: the length of time mr tuki was in australia before he began to engage in criminal conduct

19.     The summons documents suggest Mr Tuki began to offend in the same year that he arrived in this country. But even if I were to ignore offences he committed while a juvenile, it is clear that he was in trouble with the law almost as soon as he became an adult. He has been in trouble regularly ever since, and he is now 27 years of age. Part of that time has been spent in gaol which limited his opportunity to establish ties within the Australian community. This consideration does not count in Mr Tuki’s favour.

Primary consideration 4: international obligations

20.     The only international obligations of relevance are those which relate to Mr Tuki’s children. He has three. They were aged 11, 8 and 5 at the time of the hearing. They all live with their mother, although the older two did reside in chaotic circumstances with the applicant, their grandmother and a number of other relatives for a few months before Mr Tuki went back to gaol. The children have been taken to visit the applicant in gaol on several occasions.

21.     The best interests of the children will presumably be served by developing or consolidating a relationship with their father. I understand it is not envisaged that the children will live with their father upon his release. The details of the custody and access arrangements are yet to be addressed. I also accept it will be practically difficult for the children to travel to New Zealand to visit their father there if he returned to that country.

22.     I note Mr Tuki appears to have developed a bond with his fiancé’s two teenage children. They both wrote letters of support which were included in the file and they attended the hearing. The age of the children and the short duration of their relationship with Mr Tuki suggest their interests are unlikely to be affected as directly as those of his own children.

23.     I accept the interests of the children weigh in Mr Tuki’s favour. 

Other considerations

24.     Paragraph 11 sets out a number of other considerations, although other matters may also be relevant to the exercise of the discretion.

25.     I accept Mr Tuki has family relationships in Australia that will be adversely affected if he is removed from this country. His parents reside here, although they do not live together. The applicant’s mother gave evidence and indicated she wanted to focus on her son when he was released from gaol. She said she had the capacity to do that as she is responsible for fewer people (at one stage, she had 14 relatives living with her in a four-bedroom home). Mr Tuki’s father is also ill.

26.     A number of the applicant’s siblings live in this country: he is the last child of a large family. Most of his siblings remain behind in New Zealand although I understand they do not have contact with their Australian relatives, including the applicant. The applicant does not appear to have formed strong community ties in this country (although I note he participates in the Maori Society) and it is unclear whether he has a wide circle of friends. He does not have any business interests that will be prejudiced by his return to New Zealand.

27.     I have already spoken about the relationship between the applicant and his biological children who reside with their mother. The applicant has a poor relationship with his former partner – there were allegations of domestic strife – and there are practical and financial obstacles to the children travelling to New Zealand. I have already noted the irregular relationship with his children will become harder to sustain if he leaves Australia.

28.     It will also be very difficult for the applicant to sustain his relatively new relationship with his fiancé. She gave evidence at the hearing. She is obviously committed to the relationship but I accept it would be difficult to accompany Mr Tuki to New Zealand if his visa is cancelled because that would significantly disrupt the lives of her own children. I have already noted her children will probably be disappointed if Mr Tuki is required to leave, but they are teenagers and their relationship with him is limited. I note that the applicant’s fiancé must have been aware at the time she commenced the relationship that the applicant was a person of “character concern”.

29.     The applicant is now 27 years of age. He does not face any serious health or other concerns that cannot be met in New Zealand.   

30.     The applicant says he has few links with New Zealand, although he did not leave there until 1996 when he was 14. He does not have contact with siblings or friends in that country.

31.     The applicant’s immediate family – which I will define for this purpose as his three children, his fiancé and her two children, and his mother with whom he lived before returning to gaol – will experience hardship if he is forced to leave Australia. I have already observed that there are practical and financial obstacles to moving back to New Zealand, or even visiting the applicant on holidays. The relationship between the applicant and the various family members I have referred to has already been compromised by the applicant’s incarceration, and his involvement with his fiancé and her children is comparatively recent. I note that not one of them is financially dependent on the applicant.

32.     The applicant would not have any difficulty with language in New Zealand. He is essentially unskilled, but there is no particular obstacle to him obtaining training and assistance in either country.

33.     I note the Minister had written to the applicant sometime before the cancellation decision warning that this process might be commenced if he did not change his ways. Mr Tuki says he did not recall receiving such a letter. I will accept his evidence on this point.

Balancing the considerations

34.     When I weigh the primary considerations together, I am particularly impressed by the risk that Mr Tuki will re-offend. I am certainly mindful of the interests of his children, but the risk of re-offending is a significant one that tends to suggest the discretion to cancel should be exercised against him. I acknowledge that a number of the “other considerations” count in his favour, but – on balance – I think they do not outweigh the concerns I have about the pattern of behaviour he has exhibited over a number of years.

Conclusion

35.     The decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ......................[Sgd].....................................................
  Patrick MacDonald, Associate

Date of Hearing  20 July 2010
Date of Decision  29 July 2010

Solicitor for the Applicant               Mr P Gupta

Solicitor for the Respondent          Mr R Bower