Houpapa and Minister for Immigration and Citizenship
[2011] AATA 917
•20 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 917
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/4269
GENERAL ADMINISTRATIVE DIVISION ) Re Aramu Houpapa Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date 20 December 2011
Place Sydney
Decision The decision under review is affirmed. ..........................[sgd]....................
Senior Member A K Britton
CATCHWORDS
MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – decision under review affirmed
Migration Act 1958 (Cth) – ss 499, 501
Direction [no. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
20 December 2011 Senior Member A K Britton
1. Mr Aramu Houpapa is 25 years of age and currently serving a custodial sentence following his conviction for the offence of sexual intercourse without consent. The Minister for Immigration and Citizenship has decided to cancel his Australian visa. Mr Houpapa has applied to the Administrative Appeals Tribunal (AAT) for review of that decision. He will be deported if his application is unsuccessful.
2. Mr Houpapa recently became eligible for release but parole was refused because he had not completed a drug and alcohol program. The Parole Authority (NSW) will review his application for parole when he completes the “Getting Smart Program” - a structured drug and alcohol program offered by the NSW Department of Corrective Services. He is due to complete that program on 20 December 2011.
3. Mr Houpapa does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened (s 501 of the Migration Act 1958 (Cth) (the Act)). In deciding whether that power should be exercised, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.
Factors relevant to the exercise of power to cancel Mr Houpapa’s visa
4. The Direction instructs that in exercising the power conferred by s 501, due consideration must be given to the Government’s objectives:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
5.The Direction lists a number of “primary” and “other” considerations the decision-maker must take into account and instructs that “other considerations” — namely those listed at cl 11 — should generally be given less weight than primary considerations: cl 11(2).
6. The primary considerations are set out in cl 10(1) of the Direction:
(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).
PRIMARY CONSIDERATIONS
(a) Protection of the Australian community
7. Factors relevant to assessing the risk of harm to the community of Mr Houpapa’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated (cll 10.1.1 and 10.1.2).
(i) Seriousness and nature of the conduct
8. The Direction sets out, at cl 10.1.1(1), factors that must be taken into account in assessing the seriousness and nature of the offending conduct and states:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
9. Clause 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
10.Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
…
11. As conceded by Mr Houpapa, the subject offences, which resulted in him being sentenced for seven years, are of a serious nature. Rape and assault are listed by the Direction as examples of “serious offences”: cl 10.1.1(2). On sentencing, Marien DCJ commented:
The facts before me disclose the commission of a very serious offence by the offender. That is clearly demonstrated by the fact that the legislature has imposed a maximum penalty for the offence of fourteen years’ imprisonment, and that the offence attracts a standard non-parole period of seven years’ imprisonment. The offender attached and sexually assaulted a young defenceless woman in the street at night, who was walking to her home. It cannot be disputed that any victim of such a sexual assault would suffer emotional harm. Tendered by the Crown is a victim impact statement prepared by the victim which describes the emotional harm she has suffered as a result of the offence. She states that she remains scared and is unable to walk on her own when it is dark.
12. As revealed by Mr Houpapa’s criminal history, set out in Attachment A to these Reasons, the subject offences are the only “serious” offences committed by Mr Houpapa since he arrived in Australia in August 2005. His other convictions were for “damage to property” committed in association with the subject offences and driving offences committed a month earlier.
13. While Mr Houpapa has a lengthy criminal history in New Zealand, all offences were committed when he was a minor; none were sexual in nature or resulted in a custodial sentence. Apart from a single conviction for “assault police”, none involved violence.
14. None of Mr Houpapa's offences were committed in breach of court orders or while he was on parole. The only evidence of Mr Houpapa breaching judicial orders is his 2004 conviction for “failure to answer court bail”.
(ii) Risk that the conduct might be repeated
Previous general conduct
15. It would appear that after the birth of his first child in 2005, Mr Houpapa, as claimed, made significant efforts to reform. There is no evidence of any misconduct from that time until the subject offences (apart from the driving offences). His partner of eight years and her mother (who for convenience I will refer to as “the mother-in-law”) each testified that since the birth of his first child, Mr Houpapa largely abstained from alcohol, worked hard to provide for his family and spent any spare time playing with and caring for his children. Each claim that he has always been a loving and devoted father.
Evidence of rehabilitation
16. While in custody, Mr Houpapa completed a number of rehabilitation programs and vocational courses. Of these, the most significant is the Custody Based Intensive Treatment (CUBIT) program — a five-month residential program for sex offenders, which Mr Houpapa completed in July 2011.
17. In a report prepared after Mr Houpapa completed the CUBIT program, psychologist Ms Joanne Senior provided an assessment of his risk of recidivism. Applying Static-99R — an actuarial tool used to predict recidivism rates of known sex offenders by examining static risk factors such as the age of the offender and their offending history — Mr Houpapa scored four (from a range of -3 to +12). According to Ms Senior, this placed him in the moderate-to-high risk category. Ms Senior explained this meant Mr Houpapa’s “theoretical” risk of reoffending was between nine and 21 per cent (within five years of the offence) increasing to between 18 and 30 per cent (at ten years after the offence).
18. Ms Senior wrote that Mr Houpapa’s “dynamic risk” (reflecting factors amenable to change) was a more accurate reflection of his risk of recidivism, but did not provide an opinion about his level of risk on dynamic risk assessment. While it can be inferred from her report that she believed that if dynamic factors were taken into account, his risk would be less than moderate-to-high, it is not possible to say to what extent she considered that risk to be reduced.
19. According to Ms Senior, Mr Houpapa’s general behaviour improved throughout the period he participated in the CUBIT program. She thought his “relatively swift progression” was indicative of his intellectual insight into treatment and ability to learn. She believed that he had good insight and understanding of his general negative behaviour and risk factors. She noted that consistent with past assertions, he had expressed remorse for his crimes. She thought that at times he appeared to have difficulties regulating his emotions but considered his understanding of, and need to, modify these problematic behaviours “a strength”.
20. Ms Senior was of the opinion that Mr Houpapa’s participation within CUBIT had largely been positive but “pro–social behaviours” remained challenging to him. She noted that while in CUBIT he was charged with intimidation (18 June 2011) and refuse/fail to supply urine (12 June 2011). She noted however, a general improvement in his behaviour in the final month of the course.
21. Prior to sentencing, Mr Houpapa was assessed by psychologist Mr Marcelo Rodriguez who prepared a report dated 2 July 2008. Mr Rodriguez assessed Mr Houpapa’s risk of sexual reoffending as low, noting that: he had no history of prior sexual offending; there was no evidence of paraphilia (deviant sexual behaviour); he had not been the victim of sexual offending; he did not appear to condone sexual offending against women; and was not psychopathic or suffering from a psychotic illness. In his opinion, Mr Houpapa’s risk would increase to moderate unless he addressed his problematic use of alcohol.
Use of alcohol and drugs
22. According to Mr Houpapa, he commenced drinking alcohol at age 13 and drank heavily until the birth of his first child. He claims that he resumed heavy drinking a few months before the subject offences, after commencing a new job where there was a strong drinking culture. He said that around that time he felt he was being dragged away from his family and back to his “old ways”. He claims not to have touched alcohol throughout the entire period of his incarceration. There is no evidence to contradict that claim.
23. Mr Houpapa admits to using cannabis on a daily basis between the ages of 13 and 16 (possibly longer) and on an occasional basis while in prison. He says he feels he needs cannabis in prison to cope with stress. Mr Houpapa has been subjected to random urinalysis testing while in custody. He has been charged with “failure to supply urine” (4 July 2010, 12 June 2011) “fail prescribed urine test (4 July 2010, 2 October 2010 and 16 September 2011). On his account, the June 2011 charge was the result of a simple misunderstanding about when he was required to return his sample. He tested negative to drug use on three of the nine occasions he was subjected to random urinalysis. On his account, the June 2011 charge was the result of a misunderstanding about when he was required to return his sample.
24. On the last occasion (16 September 2011) Mr Houpapa returned a positive test for drugs, he had just commenced Getting SMART and completed the CUBIT program.
25. In March 2008, Mr Houpapa completed two sessions of an addiction recovery program. On his account, the program was cancelled as a result of lack of participants. In late 2010, he attended a number of Alcoholics Anonymous meetings. He claimed to have stopped participating in these meetings because he felt unable to discuss his situation freely.
26. Mr Houpapa agrees with the opinion held by Ms Senior and Mr Rodriguez that alcohol use represents a significant risk factor. He claims that he intends to continue to abstain on release. He states confidence in his ability to do so and points to extended periods of abstinence after the birth of his son and while in custody. Mr Houpapa states that he is committed to avoiding a repeat of the suffering his family endured because of his offending.
Protection of the Australian Community: Findings and Conclusions
27. This consideration requires an assessment of both the seriousness of Mr Houpapa’s offending conduct and the risk that it might be repeated. There is no issue that the subject offences were serious. The more difficult issue is the likelihood that Mr Houpapa will reoffend.
28. The subject offences were the first offences, apart from the driving offences Mr Houpapa committed as an adult. His criminal history in New Zealand, while lengthy, was not particularly serious and apart from a single conviction of assault police did not involve violence.
29. While the experts differ on the likelihood of Mr Houpapa reoffending, they agree that it is inextricably tied to his ability to abstain from alcohol use.
30. Mr Houpapa’s risk of reoffending is reduced by a number of factors. These include, first having an extremely supportive partner. Not only has she has regularly visited Mr Houpapa throughout his incarceration she has gone to considerable lengths to ensure that he maintains a meaningful relationship with their three young children. Second, he recognises and is remorseful for the hardship his incarceration has caused his family. Third, as pointed out by Mr Rodriguez, there is nothing to indicate that Mr Houpapa suffers from paraphilia or was himself the victim of sexual offending — known risk factors for sexual reoffending. Fourth, as his history prior to incarceration suggests it is likely that he will be able to find and maintain employment on his release. Fifth, he has stable accommodation and a supportive family on release. Sixth, he has now undertaken an intensive and structured sex offenders rehabilitation program. Despite some concerns, Ms Senior thought that he had benefitted from that program.
31. Despite these positive indicia, there are a number of troubling factors of which in my opinion, alcohol use is the most significant. While I accept Mr Houpapa’s claim that he has abstained from alcohol while in prison and recognises the link between it and his offending conduct, I believe that there is a material risk he will resume alcohol use on his release. While Mr Houpapa has shown that he is capable of abstaining from, or at least moderating, his alcohol use for extended periods, his return to alcohol use after the birth of his son despite recognising that it had the potential to impede his ability to support his family, reveals that his battle with alcohol is not yet won. He admitted as much in evidence when he claimed that if he were to find himself again mixing with heavy drinkers, which he apprehends is inevitable if he were to return to New Zealand, he is highly likely to return to alcohol use.
32. Mr Houpapa’s misconduct charges and drug use while in prison are also troubling. While no evidence to suggest that cannabis use is a risk factor as far as Mr Houpapa is concerned, his continued use of drugs on the eve of his release given he knew he was subject to random testing and that a positive result could adversely impact on his ability to remain in Australia and application for release on parole, suggests that he continues to lack maturity, sound judgement and impulse control.
33. Given my concerns about Mr Houpapa’s ability to abstain from alcohol use, I have concluded that he poses a moderate risk of reoffending. Given the seriousness of his offending conduct, I believe the protection of the Australian community weighs in favour of the cancellation of his visa.
(b) Age when began living in Australia
34. Mr Houpapa was 18 years of age when he arrived to live in Australia therefore he is not assisted by this factor.
(c) Time resident in Australia
35. The Direction states:
Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: cl 10.3(1).
36. Mr Houpapa resided in Australia for approximately three years before committing his first offence, a driving offence. This factor therefore counts against him.
(D) Best interests of children
37. Mr Houpapa and his partner have three children aged seven, five and four. The eldest child was born in New Zealand. The two younger children were born in Australia. To preserve their anonymity, I will not refer to any by name.
38. The Direction provides that under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents (clause 10.4.1(4)). There is nothing to indicate that the interests of each child do not coincide, therefore separate consideration of their individual interests is not required (clause 10.4.1(3)). Clause 10.4.1(5) lists 15 factors to be taken into account in considering the best interests of the children and where relevant are considered below.
39. Nature and duration of the relationship: Mr Houpapa has parental rights and responsibilities for his children. Prior to his incarceration, his partner was the primary carer but he took an active role in their care. There is no argument that his relationship with his children is a close and loving one.
40. Likelihood of Mr Houpapa playing a full parental role up until his children’s 18th birthday: Mr Houpapa is likely to play a full role in the life of his children upon release from prison.
41. Likely effect of any separation: If Mr Houpapa is deported, he will be joined by his partner and their three children.
42. Other persons who fulfil a parental role: Shortly after Mr Houpapa was incarcerated, his mother-in-law moved to Sydney to assist her daughter care for the children. She has indicated that she will not remain living with the family once Mr Houpapa is released from prison.
43. Impact of Mr Houpapa’s prior conduct on the children: There is no evidence that any of the children have been adversely affected by Mr Houpapa’s misconduct, including his resumption of alcohol use in 2007.
44. Known wishes of the children: It is unclear if the children are aware that their father might be deported or that their mother has decided they will return to New Zealand, if this occurs. They appear to be close to their father and it can be assumed that they would not want to be separated from him. It also seems likely, based on the evidence of their mother and grandmother, that they are settled and happy and would probably prefer to remain in Australia.
45. Likelihood of children accompanying Mr Houpapa to New Zealand: If Mr Houpapa were to be deported, it is most likely that the children would return with him and their mother to New Zealand.
46. Circumstances of New Zealand: While I accept that Mr Houpapa and his partner believe that Australia offers greater educational and employment opportunities than New Zealand, objectively measured against the factors listed in cl 10.4.1(5)(m), the two countries in my opinion are broadly comparable.
47. Language and cultural barriers: It is not suggested that there are any material cultural or language barriers between New Zealand and Australia.
Conclusion: Best interests of children
48. In my opinion, the children’s interests would be best served if their father were not to be deported. They are now settled in their local community and school. Their mother has stable employment. It goes without saying that stability is important for their well-being. Even though the children are unlikely to be separated from Mr Houpapa if he is deported, this consideration nonetheless in my opinion, weighs in his favour to some extent.
OTHER CONSIDERATIONS
Family and other ties
49. Mr Houpapa and his partner have a genuine marital relationship.
50. Mr Houpapa claims that if he were forced to return to New Zealand, his immediate family would suffer hardship because first, they would be required to start afresh in a country where they have not lived for over six years. Second, his family are now happy and settled in Australia. His partner has stable employment, has recently been promoted and has good prospects for further career advancement. In addition, she has secured stable accommodation in an area where the children now (or will) attend school. Third, his partners’ family are heavy drinkers and he believes if he were to return to New Zealand it would only be a matter of time before he would follow suit. These concerns are shared by his partner. In addition each alluded to criminal or gang elements within her family and the risk that if they were to return Mr Houpapa might be influenced by them. Each testified that they decided to leave New Zealand in 2005 to get away from “bad influences” and provide a better life for their children.
51. Mr Houpapa’s mother-in-law testified that while she had intended to return to New Zealand once her son-in-law was reunited with his family, she is now considering staying on in Australia, at least for the short term.
52. The Secretary contends that given the young age of Mr Houpapa's children, it is likely they will be able to readily adapt to a new school and home environment and will be supported through the transition phase by both parents and extended family members already resident in New Zealand. The Secretary also points out that there is no evidence to support the claims that the family of Mr Houpapa’s partner is involved in criminal gangs.
53. I accept that Mr Houpapa’s immediate family would suffer some hardship if he were to be deported. It goes without saying that the past four years has been an extremely difficult time for his partner. Until the arrival of her mother, she struggled to care for and support three young children. She is understandably reluctant to leave the home she has established for her children and stable employment.
54. I accept the claim corroborated by the mother-in-law, that there is a heavy drinking culture within the New Zealand family. As a matter of common sense, an environment where heavy drinking is the norm is unhelpful for a person such as Mr Houpapa, who has a drinking problem.
55. Mr Houpapa’s parents, three sisters and members of his extended family live in Australia. His application to remain in Australia is strongly supported by his parents. Mr Houpapa’s parents and siblings living in Australia would suffer some emotional hardship on account of their separation however all are able to travel to New Zealand. None are financially, physically or psychologically dependent on Mr Houpapa.
Age and health
56.Mr Houpapa is young and in good health.
Links to New Zealand
57. Mr Houpapa spent his formative years in New Zealand. He has a sister and some family living in New Zealand, but most of his family now reside in Australia. As discussed, his partner’s family mainly live in New Zealand.
58. The hardship Mr Houpapa would suffer if he were to return to New Zealand would essentially be the same as that his family would experience as outlined above. It would plainly be in his interests in the immediate period after his release from prison if he were to return to a settled and stable environment. His transition from prison to the community would be less difficult in Australia, although he would be supported if he were to return to New Zealand. Any hardship he would suffer in my opinion would be short term and ameliorated once he and his partner were able to secure employment and accommodation.
59. I accept that if Mr Houpapa were to return to New Zealand and socialise with his partner’s family, the risk that he would return to alcohol use would probably increase. However his partner’s family are unlikely to be his only source of exposure to a drinking culture. Some of his relatives currently residing, or planning to reside in Australia are also heavy drinkers and, as Mr Houpapa’s exposure to alcohol use at work reveals, family is unlikely to be his only source of exposure to a drinking culture.
60. Mr Houpapa has an option of not living with or spending time with his partner’s family if he returns to New Zealand. I accept, however, that his return to New Zealand increases his risk of resumption to a degree.
61.This consideration favours Mr Houpapa to an extent.
DECISION
62. In deciding whether to exercise the discretionary power to cancel Mr Houpapa’s visa, I must take into account both the “primary” and “other” considerations and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.
63. The only primary consideration to weigh in Mr Houpapa’s favour is the best interests of his children. While I accept that it would be in their best interests to remain in Australia, the extent to which their interests would be adversely affected as a consequence of the cancellation of their father’s visa must not be overstated. If their father is deported they will accompany him and their mother to New Zealand and any hardship is likely to be short-lived while the family settles in and finds suitable employment and accommodation. The other considerations weigh in his favour but not to any significant extent. Those factors that favour Mr Houpapa, in my opinion, are outweighed by the relatively short period he has spent in Australia, the fact that he was an adult on arrival and the protection of the Australian community.
64. For these reasons I have decided that the preferable decision is to cancel Mr Houpapa’s visa. The decision under review is affirmed.
ATTACHMENT A:
Offences in Australia:
Offence Date of offence Date of sentence Sentence Common assault 26 October 2007 1 August 2008 2 months Maliciously destroy property 26 October 2007 1 August 2008 1 month Sexual intercourse without consent 26 October 2007 25 July 2008 7 years (4 years non parole) Class A M/V excess speed 25 September 2007 17 October 2007 $300 fine Unlicensed driver/river (not licensed for 5 years) 25 September 2007 10 October 2007 $500 fine + $70 court fees
Offences in New Zealand
Offence Date of offence Date of sentence Sentence Assault police 2 January 2004 17 March 2004 6 months suspended sentence Failure to answer district court bail 23 October 2003 29 January 2004 160 hours community work Unlawful takes motor vehicle 23 September 2003 29 January 2004 160 hours community work Theft ex car ($500) 15 May 2003 29 January 2004 Reparation $1,420 and 160 hour community work Drove while license suspended or revoked 28 September 2003 29 January 2004 160 hours community work and 5 months driving disqualification Breath alcohol level over 400 mgms/litre of breath blood/breath = 646 23 September 2003 29 January 2004 160 hours community work and 6 months driving disqualification Wilful damage 5 September 2003 10 October 2003 Reparation $524.25, 5 months social welfare supervision and 60 hours community work Wilful damage 15 May 2003 10 October 2003 Reparation $200, 5 months social welfare supervision and 60 hours community work Theft property (under $500) 10 March 2003 10 October 2003 5 months social welfare supervision and 60 hours community work Aggravated robbery (manual) 7 March 2003 10 October 2003 Reparation $27, 5 months social welfare supervision and 60 hours community work
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ......................[sgd]...............................
Associate to Senior Member A K BrittonDate/s of Hearing 1 and 2 December 2011
Date of Decision 20 December 2011
Applicant self-represented
Solicitor for the Respondent Ms A Collins, Minter Ellison
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