Inoke Fotu Kaseli Huakau v Minister for Immigration and Citizenship

[2011] AATA 307

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0759

GENERAL ADMINISTRATIVE  DIVISION		)
Re		INOKE FOTU KASELI HUAKAU

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date10 May 2011

PlaceSydney

Decision The Tribunal affirms the decision under review

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

G Ettinger
  Senior Member

CATCHWORDS

IMMIGRATION - Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to grant Applicant's visa pursuant to s 501 of the Migration Act 1958 - application of Direction 41 issued under s499(1) of the Migration Act 1958 - primary considerations - protection of the Australian community - risk of recidivism  - length of time that a person has been ordinarily resident in Australia - interest of children - other considerations - decision under review affirmed

Migration Act 1958: s 501

Direction [no. 41] - Visa Refusal and Cancellation under section 501

Shi v Migration Agents Registration Authority (2008) 103 ALD 467

R v Henry (1999) 46 NSWLR 346

Veen v R (No 2) (1988) 164 CLR 465

Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31

Anderson v Minister for Immigration and Citizenship [2011] AATA 158

REASONS FOR DECISION

10 May 2011 Ms G Ettinger, Senior Member     

SUMMARY

1.      Mr Inoke Fotu Kaseli Huakau has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship dated 16 February 2011 to cancel his Class BF Transitional (Permanent) visa. The visa was cancelled because Mr Huakau does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act). In considering his application, the Tribunal is mindful that although Mr Huakau does not pass the character test, the Tribunal may nevertheless exercise a discretion following the application of Direction 41, because ultimately it must make the correct or preferable decision.

2.      Mr Huakau who was represented by his father, Mr Inoke Fotu Huakau (Senior), submitted that the discretion to grant him a visa should be exercised in his favour because following his incarcerations and the courses he has undertaken, he has now realised the significance of his previous behaviour, and the mistakes and bad decisions he had made in the past. Mr Huakau Senior also submitted that because his son had been in Australia since he was a young child, his links were here, and the hardship he and his family, and Mr Huakau’s children would suffer if he were to be deported, were significant factors.

3.      It is not in dispute, and I am satisfied from the evidence before me that Mr Huakau does not pass the character test pursuant to the legislation. I have considered the discretion in Direction 41, the primary considerations and also the other considerations, and I am satisfied that the Minister’s decision to cancel Mr Huakau’s visa should be affirmed.  My reasons follow.

BACKGROUND

4.      Mr Huakau was born in Tonga in 1981, and came to Australia with his family in 1986, when he was approximately five years old. Mr Huakau told me that he attended school until year 11, but did not complete that year because he was suspended for using abusive language. He did not return to the school, but later commenced years 11 and 12 at TAFE, which he did not complete.

5.      Unfortunately Mr Huakau first broke the law when he was only 17 years old. That first incident concerned being present in a stolen motor vehicle with friends in 1998. He was convicted of that offence at Bidura Children’s Court, and fined.  A list of Mr Huakau’s convictions follows from Exhibit R2, which is a document issued by the NSW Police.

Court Date	Court Name/Offence	Charge Date	Sentence
10/02/1998	Bidura Childrens Court	28/01/1998
Be carried in conveyance taken w/o consent of owner – T2	Fine: $400 costs – Court $51 (S75B) (LC 24537)
14/05/2002	Campbelltown District Court	03/05/2001
Robbery in company	Indicted for: Imprisonment: 3 years & 5 mths commence 100502 conclude 091005 Non parole period: 1 year & 11 mths conclude 090404 (matters taken into account on form 1) (DC 362872) Court case reference number 02/21/3031
Assault occasioning actual bodily harm	Taken into account on form 1: this file (DC36872) Court case reference number 02/21/3031
Common assault	Taken into account on form 1: this file (DC36872) Court case reference number 02/21/3031
Steal motor car/motor vehicle	Taken into account on form 1: this file (DC36872) Court case reference number 02/21/3031
Rob in company	Taken into account on form 1: this file (DC36872) Court case reference number 02/21/3031
Rob in company	Taken into account on form 1: this file (DC36872) Court case reference number 02/21/3031
13/01/2006	Burwood Local Court	10/11/2005
Use unregistered registrable class A motor vehicle	Fine: $100 costs – Court: $65
Drive while disqualified from holding a licence	Imprisonment: 6 mths suspended on enter bond S12: 6 mths supv NSW Prob Service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and to report to the Bankstown Probation office within 7 days Disqualification: 2 years commencing 10/11/2008
17/01/2006	Burwood Local Court	13/01/2006
Drive while disqualified from holding a licence	Imprisonment: 9 mths Parole period: 6 mths suspended on enter bond S12: 9 mths supv NSW Prob Service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and to report to the Bankstown Probation office within 7 days Disqualification: 2 years
10/10/2008	Parramatta District Court	27/11/2007
Robbery while armed with dangerous weapon - SI	Imprisonment: 5 years & 6 mths commencing 271107 concluding 260513 Non parole period with conditions: 3 years & 3 mths Release subject to supv in relation to substance abuse, both drug & alcohol, relapse prevention and life management skills (DC 90013479) Court case reference number 2008/00003949
18/08/2004	Burwood Local Court	28/07/2004
Never licensed person drive vehicle on road – 1st offence	Fine: $100
10/11/2005	Downing Centre Local Court	26/07/2005
Drive with high range PCA	Fine: $1,000 costs – Court: $65 Disqualification: 3 years commencing 10/11/2005 Interlock programme (EECO 2755) Bond S9: 2 years
Drive on road etc while licence suspended	30/08/2005	Fine: $1,000 costs – Court: $65 Disqualification: 2 years commencing 10/11/2005 Bond S9: 2 years
13/07/2009	Bathurst Local Court	28/05/2009
Inmate possess mobile phone/SIM card etc	Imprisonment: 3 mths commencing 13/07/2009 – to be served concurrently with 2008 sentence

6.      As can be seen above, Mr Huakau committed traffic offences such as driving while disqualified (2005 and 2006), and driving with high range PCA in 2005. He took part in an armed robbery in May 2002, and in 2007 robbed a bank, armed with a dangerous weapon in the company of a co-offender.

7.      Mr Huakau said that apart from times when he was incarcerated, he mainly lived at home with his family. That evidence was corroborated by both his father, and his mother, Mrs Penelope Huakau.

8.      Mr Huakau has three children. He tendered a statement of Ms RS, the mother of his daughter who was born in 2005, (Exhibit A5). In it Ms RS stated that notwithstanding Mr Huakau has been incarcerated for most of their daughter’s life, he is the only father she has. Even though Mr Huakau and Ms RS were not in touch for the first two years of their daughter’s life, the evidence before me was that Mr Huakau Senior met Ms RS in 2007, and Ms RS has recently been welcomed into the Applicant’s family. He said that his parents were arranging for Ms RS and their daughter to meet with him on his release from gaol in February 2011, but that he had been in immigration detention since that time. He said that since March 2011, Ms RS had been bringing Ms JS to see him at Villawood once a week, but that she did not visit him when he was in gaol. Ms RS corroborated this, saying that she did not want their daughter to associate her father with gaol, but that Villawood was more informal.

9.      Then there is Ms HE, with whom Mr Huakau lived for a short time in 2007. He first told me that he lived with Ms HE for six months, but then revised that to two to three months. When they broke up, he returned home. He had previously described Ms HE as his ‘de facto’. Mr Huakau has a daughter with Ms HE, Ms IE, who was born in 2006. He said that since he has been incarcerated in 2007, Ms HE and their daughter have visited him fortnightly.  There is no corroborating information about that except that Ms IE (without any reference to her mother), is shown as a visitor to Mr Huakau in a document at T/114 which covers May 2009/2010.  I understand that Mr Huakau Senior and family have brought Ms IE to visit the Applicant who indicated that he had seen Ms IE nine times in 2009/2010 year (T/114). He also said that the child had been living with his parents as a foster child since April 2008. 

10.     Due to Ms HE’s problems with depression and drugs, their child has been in the care of DOCS. However, Mr Huakau’s parents successfully applied to be her foster parents. Mr Huakau’s Senior’s evidence was that arrangements had been made with DOCS, and that the child had been in their foster care since April 2008. He told me that the arrangements anticipated Mr Huakau’s return to the family, and anticipated him remaining drug free. Mr Huakau Senior said he was very mindful that he had reporting duties to DOCS regarding his son, should he become involved in drugs or crime, and knew that the foster arrangement would be at risk in such a situation.

11.     There is also a child, Ms JM, aged approximately three years. Mr Huakau said that he has never met Ms JM, and does not see her mother, or know their whereabouts, although I noted from the evidence that his parents had met her. He said he suspects he is not the father of the child, and only found out about her when he was in gaol.

12.      Mr Huakau told me that he commenced taking party drugs such as cocaine and ecstasy in 2004, but then commenced with methamphetamine, and became addicted to it. He said that at the time of the 2007 robbery, the habit cost him $2,000 a week. He claims to now be drug free.

13.     Mr Huakau has also recorded offences while incarcerated. A summary follows:

Offence Date	Hearing Date	Offence	Sentence/Compensation
12/05/2010	15/05/2010	Obstruct Corr Officer (146)	14d Off Buy-ups
12/05/2010	15/05/2010	Obstruct Corr Officer (146)	14d Off amenities
05/05/2009	09/05/2009	Poss create Proh Goods (42)	7d Off amenities
05/05/2009	09/05/2009	Poss create proh Goods (42)	7d Off Buy-Ups
12/10/2003	17/10/2003	Disobey Direction (120)	28d Good behaviour
10/10/2003	13/10/2003	Disobey Direction (120)	14d Off contact visits
28/09/2003	29/09/2003	Del Rec Unauth Article (97)	28d Good behaviour
22/09/2003	29/09/2003	Fail Comp Corr Cent Rout (39)	Reprimand and caution

14.     I am mindful that on completion of his sentence, and on release from prison, Mr Huakau was placed in immigration detention where he has been since February 2011. 

LEGISLATIVE CONTEXT

15.     The relevant legislation in this matter is the Migration Act 1958 (the Act), and Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction 41).

16.     Section 501(1) states that the Minister may cancel a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) 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) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

17.     Direction 41 which is made pursuant to section 499 of the Act, is applied if exercising the discretion where a person has been held to fail the character test in section 501 of the Act.  In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account. (Shi v Migration Agents Registration Authority (2007) 158 FCR 525).

18.      Having reviewed the offences with which Mr Huakau has been charged, those of which he was convicted, and the sentences which followed, (Exhibit R2), which far exceed the minimum contemplated in section 501(7) of the Act, I am satisfied that the Applicant does indeed not pass the character test.

19.     I am mindful that the Objectives of Direction 41 as set out in paragraph 5, are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into, and presence in Australia of non-citizens.  Paragraph 5.1(2) states that:

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.

20.     Direction 41 contains a number of primary considerations and other considerations to which the Minister, and therefore the Tribunal standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

21.     The primary considerations in Direction 41 are set out in paragraph 10(1):

…

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).

…

22.     There are also a number of other considerations that, where relevant, must be taken into account, but, generally, in accordance with Direction 41, paragraph 11(1), they should be given less weight than the primary considerations.  Both the primary considerations and other considerations are discussed in the paragraphs below.

PRIMARY CONSIDERATIONS

23.     The relevant primary considerations in Mr Huakau’s case are the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct, and the risk that that conduct may be repeated. Also relevant is that Mr Huakau was five years old, that is, a minor, when he first arrived, and began living in Australia, and the length of time he had been ordinarily resident in Australia prior to engaging in criminal activity. I noted that Mr Huakau first came before Bidura Children’s Court aged 17. The best interests of any relevant child or children, and any international obligations, (not relevant in this case), are also primary considerations which I shall address in the paragraphs below.

Protection of the Australian Community

24.     The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

Seriousness and nature of the conduct

25.     With regard to the seriousness and nature of Mr Huakau’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2). I am mindful that Mr Huakau has been charged with, and found guilty of robbery in company, robbery whilst armed with dangerous weapon, as well as other offences such as driving with high range PCA, driving with licence suspended, and assault.

26.     The two armed robberies in which Mr Huakau has taken part, are the most serious of the offences he has committed. I noted that he was one of eight offenders involved in the robbery at the Liverpool Catholic Club on 2 May 2001. Acting Judge Moore in sentencing three of the offenders, stated that Mr Huakau was not involved in planning the robbery in the sense of instigating it or organising the participants.  He noted that on 2 May 2001, the day of the robbery, Mr Huakau had been on his way to the community radio station where his father is presently Managing Director, and from which he was broadcasting to youth on Saturday nights. He had stopped to have a meal with friends before going to the radio station, when he agreed to join the group which was to commit the robbery at the Catholic Club. Mr Huakau went along with the others willingly, although I accept from the Court’s comment that he had no part in the planning of the robbery. 

27.     Crimes involving violence or the threat of violence are of particular concern to the welfare and safety of the Australian community.  His Honour recognised that Mr Huakau was not involved in the more frightful acts of violence which were committed on the Club manager and staff. However, I am mindful that the patrons at the Club were terrified as well, and that Mr Huakau was one of the eight persons who were responsible for the terror those people  experienced.

28.     Mr Huakau was also travelling in a stolen vehicle with the other offenders who were all arrested shortly afterwards. Over $26,000 was taken from the Club, which was recovered.

29.     His Honour took into account that Mr Huakau, whilst he did not plead guilty immediately, made full and frank admissions in the record of interview which followed his arrest, and discounted the sentence accordingly. Mr Huakau was sentenced to three years and five months in custody, which Judge Moore reduced to a non-parole period of one year and 11 months, dating from 10 May 2002 to 9 April 2004.

30.     However things did not improve, and in fact Mr Huakau’s offending became more serious, and that is of major concern to me in making this decision. Mr Huakau was found guilty of driving while disqualified in 2005 and 2006, and received suspended sentences each time. In 2005, he was convicted of driving with a high range PCA. He was fined, disqualified from driving for three years, and was put on a bond for two years. It goes without saying that driving with a high range PCA places not only the Applicant, but members of the community and their property at risk of harm, be they pedestrians or other drivers.

31.     Then in 2007, Mr Huakau was involved in an armed robbery, for which he received a sentence of five years and six months, and a non-parole period of three years and three months. On each of those occasions he was ordered to enter into drug and alcohol, and other programs. 

32.     In the September 2007 robbery on a branch of the Bank of Queensland, Mr Huakau was armed with a screw driver which he used to jemmy parts of the safe’s drawers. He was involved in the planning, and was prepared for violence in that robbery; he also had a disguise with him. Mr Huakau and his co-offender, whom he refused to identify, stole approximately $26,000. Mr Huakau was not arrested for the armed robbery with offensive weapon until some two months later. At the time of the robbery, Mr Huakau was on a bond for a driving matter. The money was not recovered, and Mr Huakau said that he had spent the $10,000 he obtained from the robbery on lifestyle, clothes and drugs, later admitting it was mainly spent on drugs in the two months before he was arrested.

33.     Judge Ellis in 2008, when sentencing the Applicant made the following comment with regard to the starting sentence in relation to robbery with an offensive weapon (in 2007), as set out in R v Henry (1999) 46 NSWLR 346:

... Unfortunately for this offender, he does not fall within most of those categories. His offending and his personal circumstances are more serious, so the starting point having regard to that factor and the aggravated factors under 21A which exist in this case, must be higher than the four to five years nominated.

This is a serious criminal offence and the community rightly expects that there will be condign punishment in order to discourage others who might be of a like mind.

… The court has considered s21A and the court is of the view in terms of aggravating factors, that his prior criminal history which contains similar convictions for very serious robberies back in 2002 is an aggravating factor in a Veen sense [Veen v R (No 2) (1988) 164 CLR 465]. That is relevant to this court’s assessment of his prospects of rehabilitation and of the need for personal punishment. …

34.     Judge Ellis also stated that:

In the court’s view an appropriate starting point for this sentence is a sentence of seven years imprisonment. The court is proposing to allow a discount in the order of 18 months, which leaves a total sentence of five and half years. In the court’s view it is appropriate to fix a non parole period of three years and three months with an additional term of two years and three months.

35.     Then in 2009, while serving the sentence for the armed robbery in 2007, the Applicant was convicted of possessing a mobile phone in prison and sentenced to another three months to be served concurrently with his then sentence.

36.     I am concerned that Mr Huakau was prepared to tell untruths at the Tribunal. He did not admit that he had been part of the planning for the 2007 armed robbery. He also misrepresented his relationship with Ms HE, creating an impression it was ongoing when in fact, for a variety of reasons, it had been quite short lived.

37.     In considering the protection of the Australian community per Direction 41, I have dealt with the seriousness and nature of the relevant conduct by Mr Huakau as discussed in the paragraphs above. There is no doubt that his offences have been serious, as reflected in the sentencing remarks of Judge Ellis and Acting Judge Moore, and the custodial sentences their Honours have imposed. I am also mindful of the psychologist’s findings that Mr Huakau demonstrates anti-social characteristics, and the problems he has demonstrated with regard to his attitude to authority which is reflected in the continuing offences while incarcerated.  As noted above, these consisted in 2009, of possessing a mobile phone against prison regulations, and various offence such as obstructing corrective services officers (2010), and possession of prohibited goods (2009). Earlier prison offences are also listed in a table above. Mr Huakau stated that he was drug free in gaol. However, how that situation would be in the world outside gaol has not been tested.

38.     The above described serious offences mitigate strongly against Mr Huakau remaining in Australia.

Risk of the conduct being repeated

39.     I next moved to consider the risk of the conduct being repeated. Paragraph 10.1.2 of Direction 41 requires that in assessing the risk that the conduct may be repeated, consideration be given to Mr Huakau’s previous general conduct and total criminal history, and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders.

40.     I note that Mr Huakau’s criminal history is continuous, and demonstrates an increase in severity over time. He commenced with being a passenger in a stolen motor vehicle in 1998 when he was 17 years old, and progressed to an armed robbery in 2001 for which he served a custodial sentence. He then committed traffic offences, driving while unlicensed, and high range PCA (2005 and 2006, as detailed above), only to reoffend by being involved in a further armed robbery in 2007. Mr Huakau’s role in the 2007 robbery was a more violent one, as he was armed with a screw driver which he used to open safe drawers. He also committed the 2007 robbery while still on a bond as a result of a driving offence.

41.     Acting Judge Moore stated in sentencing Mr Huakau and two co-offenders for the 2001 robbery, that he took into account their youth, their first time in gaol, and the need for lengthy supervised rehabilitation on release. He took into account their remorse and the unlikelihood of re-offending.

42.     However unfortunately, things did not improve, and as noted above, Mr Huakau engaged in serious driving offences in 2005 and 2006, and was a co-offender in an armed robbery on a bank in 2007.

43.     Judge Ellis in his sentencing remarks with regard to the 2007 bank robbery said this in relation to Mr Huakau:

The offender has shown remorse, although the court is unable to positively conclude that he is unlikely to re-offend. He does have prospects of rehabilitation …

The psychological report also deals with testing in relation to personality and the conclusion reached by Mr Taylor [psychologist], is that there are some indicia of anti social characteristics, mainly relative to substance abuse, anti social associates and perhaps attitude to persons in authority. The report indicates that he is a moderate risk of recidivism and that he presents as of average intellectual ability. It is noted that he was raised in a generally supportive family although it is clear that he clashed somewhat with his father’s strict authoritarian approach to raising children. … It is clear that he has been led by inappropriate associates into misuse of illicit substances.

…

After he served just on two years for the previous offences he was released to parole and it is clear that he resumed the use of illicit substances. He indicates that at the time of the commission of this offence he was abusing alcohol and substances such as ice.

44.     Judge Ellis stated that the appropriate starting point for the sentence was seven years imprisonment. However he discounted the sentence to five and a half years, and fixed a non-parole period of three years and three months, commencing in November 2007 and concluding in February 2011. Mr Huakau’s visa was cancelled, and at the expiration of his gaol sentence, he commenced his period of parole at Villawood.  I noted that Mr Huakau Senior felt that his son should have had the opportunity of serving his parole without being in detention, and that the family had prepared for his homecoming. I noted Mr Leerdam’s submissions in reply to Mr Huakau Senior on the timing of the visa cancellation which were essentially that the Minister can cancel a visa at any time if a person does not pass the character test.

45.     As to recidivism; Mr Huakau’s attention was drawn to two warnings issued to him regarding his immigration status. He acknowledged receiving them. The first warning, at page 151 of the G-documents, is dated 23 March 2000, and states that it serves to confirm the oral warning administered to Mr Huakau on that date, as a result of his convictions between February 1997 and July 1999. The officer of the then Department of Immigration and Multicultural Affairs stated in closing: However, any further conviction will lead to the question of the cancellation of your visa being considered … If this warning is disregarded it will weigh heavily against you if your case is reconsidered.

46.     A further warning was issued 1 June 2004. Mr Huakau had attended with his father at the Parramatta office of the then Department of Immigration and Multicultural and Indigenous Affairs. The letter at page 147 of the G-documents warned as follows:

However, the Delegate also decided to issue a warning to you that conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa.

47.     The Delegate also wrote a file note at G/146, in which she recorded relevantly:

I explained that if he was convicted of any further offences that he could be reconsidered for visa cancellation. He said he understood. He read and signed the acknowledgment. Mr Huakau’s father said that his son would not be involved in any further criminal activities.

48.     Mr Huakau Senior agreed he had given that undertaking noted in the last sentence of the file note reproduced above.

49.     I also had before me two Probation and Parole Officers’ reports, the first dated 26 May 2010 at page 103 of the G-documents. Mr Huakau complained that the Officer had written the report without consulting him at all. The report included reference to prison offences:

·12-05-2010 – Obstruct Correctional Officer – 14 days off buy amenities

·05-05-2009 – Possess Prohibited Goods – 7 days off amenities and buy ups

·13-07-2009 – Inmate Possess Mobile Phone or Part – three months imprisonment to be served concurrently (13-07-2009  to  12-10-2009)

50.     Mr Huakau told me that the possess prohibited goods offence arose out of the fact that he was discovered with one tablet of morphine which he said he had found.

51.     The report also stated that Mr Huakau had been placed on a management plan by Correctional Officers on 19 May 2010 due to continuing issues of aggression and non compliance with centre rules. It recorded further that his institutional behaviour could be considered as unsatisfactory.  Mr Huakau told me that this was due to him assaulting a person in the gym on one occasion only.

52.     The report also indicated that Mr Huakau had participated in several educational and vocational training programs, and that he was on a waiting list for the moderate intensity Violent Offender’s Therapeutic Program. He had also self referred to the Getting SMART Alcohol and Other Drug program, and the Managing Emotions program.  In conclusion the officer wrote: Mr Huakau appears to have significant issues with anger management, violence and alcohol and other drug use.

53.     A second Probation and Parole report was dated 2 February 2011. The writer noted that she had had significant contact with the Huakau family, and Mr Huakau with regard to ongoing care arrangements and residential arrangements for him and his daughter (Ms IE). She noted that: The offender will be residing with his parents and daughter within the familial home upon his release to supervised parole, a decision which has been supported by Community Services and Corrective Services NSW. She also noted that Mr Huakau had incurred a further institutional misconduct offence in that he had offended by Supply False Particulars on 18 August 2010. However, the report ended on a positive note with anticipation that Mr Huakau would adapt to life outside successfully under supervision.

54.     I am mindful that Mr Huakau has undertaken a number of courses while incarcerated. They are listed in the G-documents, and include a course in ‘Responsible Service of Alcohol’, ‘Responsible Conduct of Gambling’, ‘Health Survival Program’, ‘Apply First Aid’, ‘Kairos 17 of Christian Instruction’, ‘Bonded Asbestos Removal (Construction)’, TAFE courses on mentoring, healthy eating, computer courses, welding and thermal cutting, and certain business related courses. I also had before me a statement of Mr Jason Bell dated 2 April 2011 (Exhibit A8), who holds a building licence, and has offered Mr Huakau fulltime employment on his release.

55.     Mr Huakau told me that notwithstanding the availability of drugs in gaol, he has been drug free, as corroborated by clear urinalysis, he said. He indicated that the same applied to his detention in Villawood Immigration Detention Centre.  In that regard he said that he would not be taking drugs again when he was released, because he was now stronger in that resolve.

56.     In considering the risk that the conduct may be repeated, I am mindful of Mr Huakau’s previous general conduct and total criminal history, including his conduct in prison. The Prison and Parole Report Probation dated 26 May 2010 commented on continuing issues of aggression and non compliance with centre rules, and recorded that his institutional behaviour could be considered as unsatisfactory.  

57.     I acknowledge from the evidence that Mr Huakau has strong family support, and that his parents are the foster parents for his daughter Ms IE. However, I am also mindful that Mr Huakau lived with his family for most of his life outside of gaol, except for the two to three months he spent living with Ms HE.  It is clear they did not have control over his activities during the time he spent living with them, and also clear from his mother’s evidence that she did not wish to be informed about his activities.

58.     Taking into account all the evidence and submissions, I am not satisfied that the significant risk of Mr Huakau again engaging in criminal conduct in Australia, is low. His pattern of criminal conduct was continuous from the age of 17 years, and escalated in seriousness from one armed robbery, and traffic offences, to the second armed robbery in 2007. The overall risk of Mr Huakau reoffending is a real one, and would qualify to be categorised as a moderate risk.

59.     I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence is likely to be compromised by Mr Huakau, if he were to remain in Australia. That weighs strongly against him remaining in Australia.

Whether the person was a minor when they began living in Australia

60.     The next primary consideration relevant in Mr Huakau’s case relates to him being a minor when he first began living in Australia.  Direction 41, paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

61.     I note that Mr Huakau was approximately five years old when he arrived in Australia in 1986. His attendance at school until part way through year 11 when he was suspended for using abusive language, indicated early aggressive attitudes to persons in authority, which have been commented on adversely by Mr Taylor, the psychologist who produced a report on Mr Huakau for the District Court in 2002.

62.     I have noted Mr Huakau Senior’s submissions that his son has only known life in Australia, and identifies with being Australian, and that he really did not consider himself a non-citizen until the cancellation of his visa occurred. He said that this was despite being warned twice by an officer of the Department of Immigration and Citizenship that he would not be allowed to remain in Australia if he broke the law. Mr Huakau Senior said that with the cancellation of the visa his son has now come to a realisation of the seriousness of his situation.

63.     I have noted that Mr Huakau’s family is in Australia, and that they are supportive of him. His father represented him at the hearing at this Tribunal, and several of his family, and Ms RS, the mother of one of his children attended both days of the Tribunal hearing, and gave evidence. I heard that they do not have family in Tonga, although Mrs Huakau visits there quite frequently in connection with her job of promoting tourism to Tonga.

64.     The fact that Australia has been Mr Huakau’s only home since he was five years old, and the fact that I was told English is his first language, weigh towards allowing him to stay. However the other indicia must be taken into account, and the protection of the Australian community far outweighs the consideration of any language difficulties or that Mr Huakau was only five years old when he came to live in Australia.

Length of time ordinarily resident in Australia prior to engaging in criminal conduct

65.     The third primary consideration relevant in Mr Huakau’s case, that is the length of time he has been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction 41.  This states that 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. 

66.     As already stated above, Mr Huakau arrived in Australia as a five year old, and by the age of 17, he had unfortunately commenced with criminal behaviour. He was convicted in the Bidura Children’s Court in 1998 after he was caught driving with friends in a stolen motor vehicle.

67.     He had earlier been suspended from his high school for using abusive language.

68.     Unfortunately, as indicated in the paragraphs above, Mr Huakau’s criminal conduct continued, and escalated over the years.

69.     The criminal conduct engaged in by Mr Huakau at age 17, when he was growing up, and the conduct which followed weigh against him remaining in Australia.

Relevant international obligations, including but not limited to:

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

(b) 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).

70.     The best interests of the child or children is a very important consideration. Mr Huakau has three children. He does not pay child support for any of the children.

71.     It is also generally presumed that a child’s best interests will be served if a child or children remain with their parents. However, this presumption can be rebutted, and is discussed in the paragraphs which follow.

Ms JM

72.     As already stated above, Mr Huakau has not met the child, Ms JM, aged three years, and does not see her mother, or know their whereabouts. He said that he suspects he is not the father of the child, and only found out about her when he was in gaol. He has played no part in being a parent to Ms JM. Accordingly she does not come into the equation when I consider Mr Huakau’s situation and the best interests of his children.

Ms JS

73.     Then there is Ms JS who was born in 2005, whom he saw briefly when she was quite young. Mr Huakau Senior met JS’ mother in 2007, and told us that he has remained in touch with her. She attends certain Huakau family celebrations with her daughter. A statement of Ms RS, JS’ mother was before the Tribunal as Exhibit A5, and she told me when she gave oral evidence that she had intended her daughter to meet with Mr Huakau when he was released in February 2011. She had not thought it appropriate to visit him in gaol with her daughter, but has in fact visited him with her at Villawood since March 2011.

Ms IE

74.     As already stated, Mr Huakau lived for two to three months with Ms HE, mother of Ms IE, Mr Huakau’s other daughter, who was born in 2006.  She has officially been in the foster care of Mr Huakau Senior and his wife since April 2008. They receive a State Government allowance to assist with this.

75.     Mr Huakau Senior submitted that this was an arrangement made with a long term view, and in anticipation of the Applicant returning home to live with his parents at the conclusion of his incarceration in February 2011. He said that he was happy with the idea of Ms IE having her father near her, because both he and his wife are getting on in years, and Mrs Huakau has health issues. He submitted that he and his wife could not be substitute parents on a permanent basis due to their age and capabilities, and were fostering the child on a long term basis but in anticipation of her parents taking over ultimate responsibility. Mr Huakau Senior also submitted that Ms IE knows he and his wife are the grandparents, and that Mr Huakau is her father, whom she has visited approximately nine times in gaol.

76.     Mr Huakau Senior also detailed the onerous obligations associated with foster care, such as meeting with DOCS every three months and reporting responsibilities. He submitted that he was confident his son would be drug free on his return home, but that if he were found to be using drugs, Mr Huakau Senior and his wife had a duty to report that to DOCS. Further, any breaches of the law by Mr Huakau could jeopardise Ms IE’s fostering arrangements, he said.

77.     I accept Mr Huakau’s evidence that he would miss his mother, father, disabled brother, S, and the rest of his family, and that his children would grow up without him if he were not to be permitted to stay in Australia. His parents and his brother would no doubt miss him too. I also accept his father’s evidence that his parents would have to support him until he could establish himself, as there is no social security system in Tonga.

78.     The situation with regard to the children, is that the child, Ms JM, is not in the picture at all.

79.     Ms JS has, from the evidence before me, been in a stable relationship with her mother which has not included Mr Huakau for most of her six years. She has in recent times, during Mr Huakau’s incarceration, been included in activities with Mr Huakau Senior’s family, and there is no indication that would stop if Mr Huakau were no longer present in Australia. 

80.     Ms IE is four years old and is in the foster care of Mr Huakau’s parents. They have managed well while their son has been incarcerated, and the evidence before me indicates that that relationship would be at risk if he were to return home and reoffend. The child is safe without Mr Huakau returning, and they can communicate with him by telephone and computer in Tonga. Further the evidence is that Mrs Huakau travels to Tonga on tourism related activities regularly; she would no doubt see him then.

81.     Mr Leerdam submitted on behalf of the Minister that although it was generally assumed that children’s best interests were served by having them remain with their parents, the case of Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [14] and [15] dealt with the proposition that there may be factors which weigh against that assumption.

The starting point adopted by the Tribunal is one which reflects an assumption generally held by members of the Australian community, namely that in most cases a child’s interests are best served by remaining with their parents. That view is a reflection of the various matters to which Allsop J referred to in Perez, relating to the various aspects of a child’s development. It seems to us that there would be no rational basis for denying the Tribunal the adoption of that assumption, at least initially. As the community would recognise, there may be factors which are to be weighed against that assumption. This is such a case. That does not however mean that the interests of the child has not been regarded as a primary consideration.

We do not take his Honour in Perez to lay down a rule that in every case a decision-maker must go through a list of factors which might inform a decision as to what is in the best interests of the child. In many cases that will be appropriate, but it cannot in our view preclude an approach which assumes that all those factors point to one conclusion, namely that it will be in the best interests of a child to remain with their parents.

…

The inescapable conclusion is that the Tribunal considered that there were some factors present which detracted from the generally held view concerning the best interests of the child, namely that they should be with their parents. It gave consideration to the question posed for it. It was not necessary for it to list other specific advantages to the child, given the starting point it had adopted.

82.     I understand that it is of course the wish of Mr Huakau Senior and his family that their son return home. However, having weighed up the seriousness and nature of the Applicant’s conduct, and his pattern of offending which indicates a moderate risk of recidivism, and the protection of the Australian community, I am satisfied that those considerations outweigh the family’s desire that he come home.

83.     I am mindful of what the Full Court has held in Sebastian, as quoted above, and the Court’s view that in most cases a child’s interests are best served by remaining with his or her parents. The Court held however, that as the community would recognise, there may be factors which are to be weighed against that assumption. As in Sebastian, I believe this is such a case. That does not however mean that the interests of the child has not been regarded as a primary consideration. On the contrary, it is my view that the Ms IE’s interests are best served if she remains in the foster care of the Applicant’s parents, and that her life continue without Mr Huakau.

84.     There are no international obligations which weigh towards Mr Huakau remaining in Australia.

OTHER CONSIDERATIONS

85.     Direction 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations.  Relevant considerations in Mr Huakau’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, his links with Tonga, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

86.     Mr Huakau’s family ties have been discussed in the paragraphs above. I am mindful that his family will miss him if the decision that he return to Tonga is upheld. I am mindful also of the evidence that his disabled brother, S, misses him and behaves better when he is present.

87.     The situation with Mr Huakau’s three daughters has been discussed above. I am satisfied that he can keep in touch by telephone and computer, and that Ms JS is in a safe and stable situation with her mother and contact with the Huakau family who have welcomed her recently. I am also satisfied that the care of Ms IE is in safe hands in her  foster home, and could well be prejudiced if Mr Huakau returns home and re-offends in some way.

88.     Other persons not mentioned elsewhere in these Reasons for Decision, who represent at least in part the nature and extent of Mr Huakau’s relationships with those in the Australian community are discussed here. I had before me, statements of support from:

·Mr Faiva (Exhibit A6), who is the General Secretary of the Uniting Church in Australia, Tonga Parish, made a statement and also gave oral evidence at the Tribunal. He said that he had known the Huakau family since they migrated to Australia. He spoke about Mrs Huakau’s health issues, financial issues if the family were obliged to support their son in Tonga, the fact Mr Huakau does not speak the Tongan language, and the situation with regard to the Applicant’s children (of whom he mentioned two). I noted that Mr Huakau does not attend his church. Mr Faiva’s view was that, although ultimately Mr Huakau was responsible for his actions, society and the church had failed him.

·Dr Ravulo (Exhibit A9), wrote in support of the Huakau family and their broadcasting activities, which he said developed community and cultural capacity in creating a diverse response and approach to multiethnic communities across NSW.

·Mr Tannous, (Exhibit A10), a broadcaster in an Arabic Program stated that he had known the family since 1996, and was like a grandfather to the Huakau children. He said he thought that the period away from drugs (in gaol) would set Mr Huakau back on the right path.

89.     Mr Huakau’s age can be taken into account in coming to a decision. He is currently 30 years old, and will be able to work and make a new life for himself in Tonga. I accept from the evidence that he does not have immediate family there, but note that his mother travels to Tonga regularly.

90.     The issue of warnings given to Mr Huakau about how the status of his visa could, and would, be affected by his criminal activities strongly mitigates against him remaining in Australia. No less than two formal warnings with follow-up correspondence which the Applicant acknowledges receiving, were given by Departmental officers. They are at pages 147 and 151 of the G-documents, and have been discussed above.

91.     I am satisfied that these other considerations do not outweigh the primary consideration of the protection of the Australian community.  I am satisfied that the protection of the Australian community would be compromised by Mr Huakau remaining in Australia. I am not satisfied that Australia should bear the cost and the risk of him re-offending here.

CONCLUSION

92.     I have concluded in the paragraphs above that Mr Huakau does not pass the character test. I then moved to consider the discretion in Direction 41. My first task was to weigh up the primary considerations to which I am required to give greater weight.

93.     Not surprisingly Mr Huakau, and his father on his behalf, argued that he should be allowed to remain in Australia, while Mr Leerdam contended that the primary consideration of the protection of the Australian community weighed heavily in favour of the cancellation of Mr Huakau's visa. I have already considered both arguments and the submissions of both parties above. In support of his son’s case, Mr Huakau Senior referred me to the case of Anderson v Minister for Immigration and Citizenship [2011] AATA 158, a case where the Tribunal was able to set aside the decision under review, and recommend to the Minister that a woman with an extensive criminal history remain in Australia. I noted that the best interests of children were very relevant to that case. However, each case is heard on its merits, and Anderson, whilst of interest, is not binding on me.

94.     On the evidence before me, including the reports of the Probation and Parole Service, and the sentencing remarks of their Honours Judge Ellis and Acting Judge Moore, I am satisfied that the protection of the Australian community would be compromised if Mr Huakau were to remain in Australia.

95.     The other primary consideration is that of the welfare of Mr Huakau’s children. I have already concluded above that the first daughter does not figure in the equation, and that the other two are well cared for without Mr Huakau’s assistance. The foster care of Ms IE is in place, and if Mr Huakau were to return home and breach any further legislation, it would put the stable life she lives in foster care with the Applicant’s parents which has progressed without Mr Huakau, at risk.

96.     In terms of the relevant other considerations, to which I am required to give less weight, in my view, Mr Huakau’s family ties in Australia are the most relevant of the other considerations in this case. The evidence is that the Applicant comes from a close family, and that they will suffer a sense of loss if Mr Huakau returns to Tonga. However, they can keep in touch by telephone and computer, and the evidence is that Mrs Huakau visits there regularly in connection with her promotion of tourism.

97.      I am satisfied that Mr Huakau does not pass the character test as a result of his substantial criminal record and his past and present criminal conduct. The primary consideration of the protection of the Australian community outweighs any hardship to the Applicant and his family such that the discretion in section 501 of the Act should not be exercised in the Applicant's favour. Having weighed up all the considerations, I am satisfied that the decision of the Minister to cancel Mr Huakau’s visa should be affirmed.

DECISION

98.     The Tribunal affirms the decision under review.

I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         .........sgd.........................................................................
           Casey Comans, Associate

Date of Hearing  19 & 20 April 2011
Date of Decision  10 May 2011
Solicitor for the Applicant          Mr I Huakau, (Applicant’s father)
Solicitor for the Respondent     Mr L Leerdam, DLA Piper