Hiku and Minister for Immigration and Citizenship

[2007] AATA 2061

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2061

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/4849

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ANDRE HIKU

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date14 December 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant’s Class TY sub‑class 444 Special Category Visa issued under the Migration Act 1958 be reinstated.

(sgd) Graham McDonald

Deputy President

MIGRATION ‑ visa cancelled – failure to satisfy the character test – criminal record ‑ whether discretion should be exercised in applicant’s favour – circumstances of children – disruption to marriage ‑ decision set aside.

Migration Act 1958 s 501

REASONS FOR DECISION

14 December 2007 Mr G. L. McDonald, Deputy President    

1.      The Applicant is applying for the review of a decision to cancel his visa.  The Respondent has decided that the Applicant does not pass the character test, as set out in the Migration Act 1958 (the Act), as the result of his substantial criminal record.  With one exception, not currently relevant, unless the decision is overturned the cancellation of his visa will result in him never being able to return to Australia.  The Tribunal has decided that his visa should not be cancelled.

2. The Tribunal had before it the documents filed for purposes of s 501G(2) of the Act and the exhibits tendered during the hearing.

3.      The following circumstances of the Applicant are not in issue or constitute findings made on the material and evidence before the tribunal:

He was born on 21 April 1973 and is a citizen of New Zealand.

On 30 April 1990 he and his sister, Angeline Hiku, came to live in Australia; where his mother, Mrs Maud Micallef, a New Zealand citizen and her partner, an Australian citizen, had earlier moved.  His mother had separated from her husband (the Applicant's father).

The Applicant formed a long‑standing relationship and subsequently married in 2006, an Australian citizen (now Ms Rima Yaziji-Hiku).  They have a son, Joel, who was born in 2005.  Additionally, Ms Yaziji-Hiku has two children by different fathers, Maureen, now aged 13 and Youseff, now aged 5.  Ms Yaziji‑Hiku has the day‑to‑day care of all three children.  The fathers of Maureen and Youseff exercise regular and ongoing access to their respective children.

The Applicant gave evidence, supported by Ms Yaziji-Hiku, that he, who was present at Youseff's birth and who has lived with Ms Yaziji-Hiku throughout Youseff's life, is regarded as a father figure to that child.  Youseff's father, Mr Yassim Taleb, gave evidence that, despite not knowing of the Applicant's criminal history, he regarded the Applicant as making a positive contribution to Youseff's development.  It is also claimed that the Applicant has a positive parental relationship with Maureen.  The Tribunal accepts this evidence.

Ms Yaziji-Hiku gave evidence, which the Tribunal accepts, that she found it difficult to manage family life during the periods in which the Applicant had been imprisoned.  She stated she relied on his support.  She expressed the view that permanent separation from the Applicant would greatly adversely affect her, because she would miss the company of her husband but also because she would find it more difficult to look after three children as a single mother.

The Applicant has had some work in the construction industry.  From the evidence of Ms Yaziji-Hiku, that she had taught him to read and write, and from the Tribunal's observation of him during the course of the hearing, it is clear he has only a basic education.

There is no apparent conflict between the biological fathers of the step‑children and the Applicant and his wife concerning his role in the children’s lives.  However, Youseff's father gave evidence that he would be opposed to Youseff moving to live in New Zealand with the Applicant and Ms Yaziji‑Hiku.  Ms Yaziji‑Hiku gave evidence that Maureen's father would also be likely to oppose Maureen moving to live in New Zealand.  The Tribunal accepts that with both biological fathers opposed to their children moving to live in New Zealand on a permanent basis that it would be unlikely that Ms Yaziji-Hiku would be able to secure the necessary consent to remove the children from Australia.

The Applicant's mother and sister (Angeline) gave evidence that they enjoy a very close and supportive family relationship with the Applicant, his wife and family.  The Tribunal accepts that the Applicant is not close to his two brothers and maternal aunts, who live in New Zealand.  The only occasion on which the Applicant has returned to New Zealand, since arriving in Australia, was to attend his father's funeral in 2000.  Angeline confirmed the Applicant’s evidence, that the Applicant also enjoyed a close and positive relationship with her son Roy and that this relationship has extended over a long period of time.  Roy is now aged 18.

Ms Yaziji-Hiku gave evidence that, prior to the hearing before the Tribunal, she had not contemplated having to make a choice between moving with Joel to live in New Zealand, where she could continue her married life with the Applicant, or remaining in Australia with all three children, if the Applicant's visa is cancelled.  Although strongly committed to the marriage, she opined that she would be forced to remain in Australia so that she could be with all three children.

The Applicant expressed great love for Ms Yaziji-Hiku.  He stated that he and Ms Yaziji-Hiku enjoyed a long‑standing and stable relationship.  While he acknowledged the lapses into criminal conduct, he felt his behaviour was improving, in large part because of the love and support of his wife and the responsibilities he had embraced as Joel’s father and in relation to his two step children.

4.      The Applicant's relevant criminal record is as follows:

On 19 July 1991 he was convicted in the Children's Court of a number of offences including of least 15 counts of burglary and 12 of theft.  He was placed on probation for those offences.  On 6 December 1991 he was again convicted of a series of offences, including breaching the terms of the earlier probation order.

From January 1992 onwards he has been convicted in metropolitan Magistrates' Courts of a large number of offences for which he was variously fined, imprisoned with the sentence suspended, imprisoned or ordered to undertake community work.  Ultimately, on 2 October 2001 he was sentenced to a term of imprisonment of one year and two months, with a minimum non‑parole period of seven months.

On 14 May 2003 he was sentenced to 18 months imprisonment with a non‑parole period of 12 months for a series of offences including six counts of burglary, six counts of theft and two of attempted burglary.

The Applicant has committed a variety of offences for which he has been convicted and sentenced as a child and as an adult.  The Tribunal has noted that among those offences classified in Ministerial Direction (Nº 21) – Visa refusal and cancellation under section 501 of the Migration Act 1958 (the Ministerial Direction) as being very serious the following two offences were committed by the Applicant as a child: assault with intent to rob and unlawful assault.  The following offences were committed by the Applicant as an adult: intentionally or recklessly causing injury, assault police (4 counts), unlawful assault (2 counts) and aggravated burglary (2 counts).  The majority of the Applicant’s offences relate to theft and burglary.  Other offences committed by the Applicant as an adult include unlicensed driving, wilful damage, unlawfully on premises, possessing cannabis, escaping lawful custody, providing a false name and bringing money ‑ the proceeds of crime into Victoria.  In some cases the Applicant has more than one conviction for the offence.

5.      With respect to some of the offences, the Applicant agreed he had been convicted but denied to the Tribunal that he had committed the offences.  In such circumstances, the Tribunal cannot look behind the person's criminal record.  It is not the function of the Tribunal where a person agrees to the accuracy of a criminal record, to determine, or rather re‑determine, guilt or innocence or the fact of the sentence imposed.

6.      At the date of hearing this application the Applicant had been in custody for about five months on two further counts of aggravated burglary, to which he had pleaded guilty, and was awaiting sentence.  The respondent tendered a copy of the police facts relating to those offences.  It includes the fact that the Applicant, upon being discovered burgling residential premises above a shop, pushed a 16 year old occupant to the ground.  The Tribunal has taken the police facts into account in determining the application.

THE RESULT OF THE APPLICANT’S CRIMINAL RECORD

7.      A non-citizen in respect of whom, the Minister or his delegate, reasonably suspects does not pass the character test is at risk of having his/her visa cancelled. Section 501(6) of the Act provides that a person does not pass the character test if he/she has a substantial criminal record.  A substantial criminal record is defined in s 501(7)(c) as applying to a person who has been sentenced to a total of 12 months or more of imprisonment. From the Applicant's criminal record the Tribunal is satisfied that he has a substantial criminal record and it was open to the Minister's delegate to decide that the Applicant did not pass the character test.

THE MINISTERIAL DIRECTION

8. Section 501(2) of the Act provides only that a person who does not pass the character test may have his/her visa cancelled. There is a discretion to be exercised. To guide decision‑makers, including this Tribunal, the Minister has issued the Ministerial Direction which is to be followed. The Ministerial Direction divides the considerations into primary and other considerations and provides that the primary considerations are to be given greater weight.  The primary considerations applying in this case are:

(a)the protection of the Australian community, having regard to the seriousness and nature of the Applicant's criminal conduct, the risk of recidivism and the need to deter other non citizens from engaging in similar conduct; and

(b)the expectations of the Australian community that non‑citizens will obey the law while in Australia; and

(c)the best interests of any children who may be affected by the decision to cancel the visa. 

9.      The other considerations in this case relate to the effect of the visa cancellation on the Applicant's relationship with his wife, his mother, sister and his sister's son, Roy; and the prospects for the Applicant if his visa is cancelled and he is returned to New Zealand.

10.     Additionally the Ministerial Direction identifies a number of offences which are to be regarded as very serious including assault or any other form of violence against a person.

THE ISSUE BEFORE THE TRIBUNAL

11.     On the evidence the Tribunal is satisfied that the Applicant is a person who does not pass the character test because of the length of the sentences imposed by the courts as the result of his offending.  The Tribunal notes that on two occasions he has been sentenced to more than the 12 months imprisonment, 12 months being the minimum sentence required to lead to a finding that he does not pass the character test.  That being clearly a decision that the delegate could reach, the issue for the Tribunal is whether the decision to cancel the Applicant’s visa is the preferred decision.  As stated earlier, the Tribunal must carry out its assessment having regard to the terms of the Ministerial Direction.

TRIBUNAL CONSIDERATION

12.     There is much weight in the submission made on behalf of the Minister by Ms Miller, that the seriousness and nature of the Applicant's criminal record raises concerns for the community.  The Applicant's conduct represents a consistent pattern of offending, mainly relating to offences involving dishonesty.  Indeed, even when aware that his visa may be cancelled, the Applicant has committed two additional aggravated burglaries to which he has pleaded guilty and is awaiting sentence.  To date, the offending has been such that it has all been dealt with in the Children’s Court and the Magistrates' Courts.  The Tribunal also notes that, despite being given the opportunity of undertaking community work, probation, and suspended sentences, the Applicant has re-offended on every occasion resulting in him being re‑sentenced.

13.     It would appear, despite assurances given by the Applicant, when giving his evidence to the Tribunal, that he had overcome his impulse to re‑offend, and despite evidence from Ms Yaziji-Hiku, his mother and his sister Angeline that they have counselled him many times not to re-offend, that there are risks to the Australian community, including the risk of him committing further offences.  Clearly the Applicant has failed the expectations of the Australian community that non-citizens should comply with the law while living in Australia.  If the Applicant’s visa is not cancelled others may not regard criminal activity as acting as a deterrent when their visa applications arise for consideration.

14.     However, though the offending is consistent it does not have that character which would or ought to lead to an expectation that results in the Applicant having his visa cancelled, without the need to consider the other primary considerations and other aspects nominated in the Ministerial Direction.  One of the matters of primary concern is the effect of the visa cancellation on any children.  In this case there are three children to be considered.  The Tribunal accepts that the fathers of Ms Yaziji‑Hiku’s older children would be likely to oppose their children leaving Australia to live permanently in New Zealand.  It also accepts that Ms Yaziji‑Hiku would be highly unlikely to relocate to New Zealand with Joel in order to continue her marriage with the Applicant without being able to take the two other children with her.  That being the case, if the Applicant’s visa is cancelled and he returns to New Zealand, his son Joel will be deprived of the day‑to‑day contact and care of his father; and the two other children will be deprived of what the evidence demonstrates is the ongoing and positive support offered by the Applicant.  Joel is a young child and, however explained, it would be difficult, if not impossible, for him to comprehend why his father has left.  The Tribunal accepts that a strong relationship exists between Joel and his father, it also accepts that the result of permanent long distance separation would be likely to have an adverse affect on Joel.  Further, there is nothing in the behaviour of the Applicant which suggests that he may be tempted to engage any of the children in his criminal activity.  The evidence suggests that the Applicant is loving and supportive of the three children.  There is no suggestion that the Applicant has attempted to engage them or his nephew, Roy, in any criminal activity.

15.     The respondent maintained that since the fathers of Maureen and Youseff had an ongoing involvement in those children's lives, if the Applicant returned to New Zealand, any adverse affect on them would be less severe as their biological fathers could and would likely absorb the day‑to‑day responsibilities currently undertaken by the Applicant.  The Tribunal accepts this proposition; but it is satisfied that Ms Yaziji-Hiku's ability to cope looking after the three children in the permanent absence of the Applicant would still come under considerable pressure.  It is reasonable to conclude that, as a result, her ability to maintain a high level of care for the children would be compromised and that consequently all three children would stand to be disadvantaged as a result.

16.     One of the other factors to be considered is the effect that visa cancellation would have on the Applicant and his wife.  They have, what is now, a long-standing relationship which has survived the vicissitudes of the Applicant being imprisoned and not holding down a steady job.  Of all of the other considerations open, it is evident that the cancellation would lead to the permanent separation of the Applicant and his wife at least until the children become adults – a period of approximately some 13 years.  It is hard to imagine a commitment, however strong, being able to survive that length of time or being able to be revived, given the differing intervening circumstance which the couple would experience.  While not nominated as a primary consideration, and accordingly to be given less weight when deciding the case, the strong possibility of breaking up an otherwise successful marriage is something decision‑makers need to consider seriously.

17.     The Tribunal is satisfied that the Applicant enjoys a close relationship with his mother and sister, Angeline.  In particular, his mother stated that whatever his offences, she would also stand by him as he was her son.  While both may have tried to influence the Applicant to abandon his offending, the Tribunal accepts that they have been unsuccessful.  However, the family bond is sufficiently strong that they, along with Angeline's son, Roy, would suffer by being deprived of the Applicant's presence in Australia.

18.     Ms Miller submitted that the interests of the children, while recognised as a matter of primary concern in the Ministerial Direction, were not determinative and needed to be weighed against the other two nominated issues of primary concern, and then taken into account with the other factors.  The Tribunal raised the possibility of the application of the United Nations Convention on the Rights of the Child to the Ministerial Direction; and whether, if it applied, the rights of any child should take precedence over the other two matters nominated as being of primary concern.  Ms Miller undertook to file a written submission on this point.  A submission was received which supported Ms Miller’s contention that the rights of the child should be accorded the same weight as the other two matters nominated as primary considerations.  The Tribunal did not have time because of statutory constraints to put the submission to the Applicant and invite a response.  In the end, since the point raised by the Tribunal is not determinative of this appeal, the Tribunal has accepted that the rights of the child are to be accorded equal weight to the two other matters of primary concern.

19.     As Ms Miller identified, reaching a conclusion in this case requires a balance between the interests of the community on the one hand and those of the individuals, including the Applicant, his wife, his child and step‑children, his mother, sister and nephew on the other.  However, the Tribunal notes that the community also has an interest in the outcome if the effects to individuals, particularly to children, are to be adverse.  The balance is often difficult to determine.

CONCLUSION

20.     Although some of the offences committed by the Applicant are classified in the Ministerial Direction as being very serious, it is fair to conclude that the sentences passed, all in the Children’s and Magistrates’ Courts, do not reflect the offences as being at the higher end of criminal culpability.  The Tribunal concludes that the Applicant’s behaviour is of the less serious category and spontaneous in nature rather than representing any substantive organised criminal activity.  The Tribunal however, on behalf of the community, expresses an ongoing concern as to the extent of the Applicant’s criminal record, the likelihood of him committing further offences, as well as the likely encouragement his crimes may give to other like‑minded non‑citizens living in Australia.  As such he fails on two out of the three primary considerations nominated in the Ministerial Direction.

21.     However, even although he fails on two of the three primary considerations, the Tribunal is satisfied that the interests of the three children are such, that the circumstances surrounding this primary consideration, along with the other less influential factors discussed earlier, outweigh the adverse conclusion reached with respect to the other two primary considerations.  The public interest and the interests of the individuals coincide to support the continuance of functional family relationships where children stand to be disadvantaged by the permanent absence of a parent resulting from a visa cancellation.  Clause 2.17(a) of the Ministerial Direction acknowledges the family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.

22.     For the above reasons the Tribunal sets aside the decision under review.  The matter is remitted to the Respondent with a direction that the Applicant’s Class TY sub‑class 444 Special Category Visa issued under the Act be reinstated.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr G.L. McDonald, Deputy President

Signed:          Olympia Sarrinikolaou

Clerk

Date of Hearing  23 November 2007
Date of Decision  14 December 2007
Advocate for the Applicant          Self‑represented
Advocate for the Respondent       Ms K. Miller, Australian Government Solicitor