Iti Paerau and Minister for Immigration and Citizenship
[2012] AATA 798
•15 November 2012
[2012] AATA 798
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3806
Re
Iti Paerau
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member
Date 15 November 2012 Place Sydney The decision under review is affirmed.
.......................[Sgd]..........................
Ms J L Redfern, Senior Member
Catchwords
MIGRATION AND CITIZENSHIP – visa cancellation – procedure for visa cancellation hearings - non payment of application fee - failure of applicant to serve written statements before hearing - character test – substantial criminal history – seriousness of conduct and risk of further offending – protection of Australian community outweighing all other factors – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501
Administrative Appeals Act 1975 (Cth) ss 29, 29ACases
Gallagher and Minister for Immigration and Citizenship [2011] AATA 10
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Reedy and Minister for Immigration and Citizenship [2011] AATA 363
SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209
Pang and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 796
Tuitaalili and Minister for Immigration and Citizenship [2011] AATA 144Secondary Materials
Direction [no. 55] – Visa refusal and cancellation under s 501
Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998
REASONS FOR DECISION
Ms J L Redfern, Senior Member
15 November 2012
Mr Iti Paerau is a 34-year-old New Zealand citizen. He has resided in Australia since April 1993 from the age of 14 years old and on 1 September 1994, was deemed to be the holder of a visa which allowed him to remain in Australia indefinitely while he was a New Zealand citizen.
Mr Paerau has a lengthy criminal history in New South Wales and Queensland, commencing from the age of 17 years old. On 19 July 2011, Mr Paerau was convicted of a number of offences, including two counts of unlawful possession of a motor vehicle and stealing. He was sentenced to imprisonment for these offences for a period up to 2 years and 6 months, although the sentences were wholly suspended for an intensive drug rehabilitation order. Prior to this, Mr Paerau had been sentenced to terms of imprisonment exceeding 12 months on no less than six occasions. He has served approximately 8 years in various correctional centres in New South Wales over the past 17 years, although it should be noted that his sentences have been significantly longer.
On 15 August 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Paerau’s visa. Mr Paerau seeks a review of that decision.
The Minister has discretion to cancel a visa if Mr Paerau does not satisfy the character test set out in the Migration Act 1958 (Cth) (the Migration Act). Mr Paerau does not satisfy this character test because of his criminal history and the issue for determination is how the discretion should be exercised in the circumstances of this case. If Mr Paerau’s visa is cancelled, he will be removed to New Zealand.
LEGAL FRAMEWORK
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in s 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. Over the past 12 years, Mr Paerau has been sentenced to numerous terms of imprisonment for a period of 12 months or more and, as such, has a substantial criminal record. He therefore does not pass the character test and the discretion under s 501(2) is enlivened.
Section 499(1) of the Migration Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers. The decision-maker, including the Tribunal, must comply with the written directions (s 499(2A)).
The Minister has delegated the exercise of the discretion under s 501(2) and from time to time has issued written directions under s 499(1) of the Migration Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. At the time the delegate made the decision to cancel Mr Paerau’s visa, the relevant direction in operation, which commenced on 15 June 2009, was Direction [no. 41] – Visa refusal and cancellation under section 501 (Direction no. 41). On 28 July 2012, the Minister issued a new direction, Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55), which came into effect on 1 September 2012. Given that my decision is after this date, the relevant direction to consider is Direction no. 55, rather than Direction no. 41.
Direction no. 55 states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (cl 6.2(1)). It also sets out six principles “of critical importance in furthering that objective”, which are stated to “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (cl 6.2(1)). These principles must inform the exercise of the discretion and involve a balancing exercise (cl 7(1)). The principles are as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55 and information and evidence from independent and authoritative sources should be given “appropriate weight”. The primary considerations should generally be given greater weight than the other considerations and one or more of the primary considerations may outweigh other primary considerations. Both primary and other considerations may weigh in favour of, or against, cancellation.
There are four primary considerations, three of which are relevant to this case, being: protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia and the best interests of minor children in Australia. It is common ground that the fourth primary consideration relating to international non-refoulement obligations is not relevant.
The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims) and the extent of any impediments the person may face if removed from Australia.
Before consideration is given to these factors in light of Mr Paerau’s circumstances, I note that a number of procedural issues arose prior to and during the course of the hearing which were material to the determination of this matter. As such, it is appropriate to refer to the legislative provisions relevant to these matters by way of background.
Section 500(1) of the Migration Act provides for applications to be made to the Tribunal for the review of decisions to cancel a visa made under s 501(2). Section 500 of the Migration Act includes a number of provisions, being those set out in ss 500(6A) to (6L), that are designed to expedite the determination of applications for review. Subsection (6L) provides that if the Tribunal has not made its decision within 84 days after the day on which the person affected by the delegate’s decision was notified of it, the Tribunal is taken to have affirmed the decision under review. Subsections (6A) to (6L) were inserted into the Migration Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Migration Act 1998 (No. 2) (Cth). According to the Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, the amendments “balance the Government’s concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person’s character” and. “are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled”.
Relevantly, s 500(6B) provides that an application to the Tribunal for a review of the decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision and expressly excludes the application of ss 29(1)(d) and 29(7) to (10) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Subsection 29(1)(d) of the AAT Act deals with the time for lodging applications for review and ss 29(7) to 29(10) allows the Tribunal to extend the time for lodging applications if an application is not lodged within time. It is therefore clear that the Tribunal has no power to grant an extension of time for the lodging of such an application for review of a decision to cancel a person’s visa and those applications must be lodged in the nine day period.
In addition, ss 500(6H) and (6J) limit the information that the Tribunal may have regard to when considering applications for review under s 501 of the Migration Act. Section 500(6H) provides that “the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”. Section 500(6J) provides that “the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing”.
The Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 considered these provisions and at [25], Gray J (with whom RD Nicholson and Stone JJ agreed) observed as follows:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business day’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
Thus, the procedures for applications for review of visa cancellations are different from the procedures for other matters before the Tribunal and are designed to ensure these visa matters can be determined within the overall time limit fixed by ss 500(6L).
PRELIMINARY ISSUES AND CONDUCT OF THE HEARING
This matter was originally listed for hearing on 17 and 18 October 2012 and was listed for directions before me on 20 September 2012. At the directions hearing, both Mr Paerau and the legal representative for the Minister requested that the hearing be delayed to allow more time for preparation and the filing of evidence. I acceded to this request and made directions for the matters to be attended to prior to the hearing, including a direction that Mr Paerau file and serve any evidence upon which he wished to rely by 26 October 2012. I also explained to Mr Paerau that it was critical for him to serve any evidence on the Minister at least two business days before the hearing and explained the effect of ss 500(6H) and (6J) of the Migration Act.
Mr Paerau was also advised of the directions by letter dated 20 September 2012 and the Tribunal, through its officers, made contact with Mr Paerau on a number of occasions prior to the hearing to remind him of the directions.
Mr Paerau did not file and serve any written statements or documents on the Minister prior to the hearing. Furthermore, Mr Paerau had not lodged any statements or documents in response to previous notices served by the Department of Immigration and Citizenship (the Department) about his migration status nor in respect of the notice of intention to cancel his visa, which was served by the Department prior to this cancellation. In his application for review, Mr Paerau simply attached the decision of the delegate to cancel his visa and stated he wanted a review. As such, there was no information about Mr Paerau’s current circumstances available to the Minister or the Tribunal, other than the information contained in the documents filed and served by the Minister’s legal representative under section ss 500(6F) of the Migration Act and documents obtained by the Minister under summons from third parties that were filed and served prior to the hearing. These documents comprised records produced by the Queensland Police Service, New South Wales Corrective Services, Goldbridge Rehabilitation Services and the Salvation Army Recovery Services Centre, Moonyah.
At the time of filing his application for review, Mr Paerau did not pay the prescribed application fee, which, for applicants in detention, is a reduced fee of $100. Mr Paerau was notified of the requirement to pay the application fee for his application to proceed on a number of occasions, including by letter dated 3 September 2012, but did not pay the fee before the commencement of the hearing.
The matter was relisted for hearing on 7 and 8 November 2012. The legal representative for the Minister arranged for Mr Paerau to be transported to the hearing from the Villawood Detention Centre but Mr Paerau refused to leave the Detention Centre and failed to appear at the commencement of the hearing on 7 November 2012. The representative for the Minister requested that Mr Paerau’s application be dismissed under s 42A(2) of the AAT Act given that Mr Paerau had failed to appear. Rather than proceed with this course, I contacted Mr Paerau during the hearing by telephone to clarify his intentions. I also raised with Mr Paerau the fact that he had not filed and served any evidence or paid the prescribed fee and explained the effect of these matters to Mr Paerau. The parties were notified that the proceedings would be adjourned until later in the day to give Mr Paerau the opportunity to appear to present his case. Mr Paerau attended later in the day but advised he had forgotten to bring the application fee. Notwithstanding this, Mr Paerau said he wished to proceed with his application for review and would bring the application fee on the following day. Given the matter was listed for a second day of hearing, the matter was adjourned to 8 November 2012.
Mr Paerau attended on the second day of the hearing and paid the application fee prior to the commencement. He did not give any oral evidence and acknowledged he had not provided the written statements in accordance with the directions or in accordance with the two day rule. The hearing proceeded on the basis of the information filed and served by the Minister, to which I have referred earlier in this decision.
Given Mr Paerau did not pay the prescribed fee at the time of lodging his application for review or within the nine day time limit for lodging applications for review, there was a preliminary issue about whether Mr Paerau’s application was valid and within the time prescribed by the Migration Act. Section 29A of the AAT Act provides that an application to the Tribunal is “not taken to be made unless the prescribed fee (if any) in respect of the application is paid”. This issue has been previously considered by the Tribunal in the decision of Gallagher and Minister for Immigration and Citizenship [2011] AATA 10 and has been subsequently applied in Reedy and Minister for Immigration and Citizenship [2011] AATA 363. In Gallagher, Deputy President Groom concluded, at paragraph 37, that he had jurisdiction to hear the application on the following basis:
......what the legislature intended requiring of an applicant in these particular circumstances was substantive compliance with the provisions of section 29A of the AAT Migration Act. If an application has been made within time and a fee paid subsequently but before the matter was to be heard and determined by the Tribunal, then there has been substantial compliance with the requirements of section 29A.
In this case, Mr Paerau’s application was filed within the time prescribed by s 500(6B) of the Migration Act and, following the reasoning in Gallagher, I find there is a valid application for review and, as such, have jurisdiction to hear this matter. I also note that the Minister accepted this proposition.
The second preliminary issue for determination was whether Mr Paerau could provide oral evidence about his current circumstances relevant to the application when he had not filed and served any written statements at least two business days before the hearing, namely on or before 2 November 2012.
In previous cases before the Tribunal, the Tribunal has allowed oral evidence from an applicant to explain or amplify material contained in a written statement (for example, Reedy) and has allowed oral evidence from one witness in respect of the written statement of another and in respect of matters raised in the applicant’s Statement of Facts, Issues and Contentions (see SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209). In both these cases written statements were served on the Minister within the period contemplated by the two day rule. In this case, there were no such written statements served on the Minister. There were reports from the New South Wales Probation and Parole Service that included some information about Mr Paerau’s personal circumstances but there was very little information about Mr Paerau’s relationship with his family and his children in Australia.
Mr Paerau would have liked to give oral evidence about these matters but regrettably there was no written material provided to the Minister or the Tribunal in respect of which he could justifiably explain or amplify. As set out in Goldie, the purpose of s 500(6H) and (6J) is to ensure the Minister is given adequate opportunity to answer the case put by the applicant in the context of the strict time limits on the determination of these matters. Having regard to those provisions and the fact that no written statements were provided to the Minister by Mr Paerau at least two business days before the hearing, Mr Paerau was not given leave to give oral evidence in support of his case but nonetheless made submissions by reference to the material tendered by the Minister.
THE EVIDENCE
The evidence was contained in the documents served by the Minister pursuant to s 500 (6F) of the Migration Act in addition to information in documents obtained from third parties about Mr Paerau’s criminal history, his time in prison and, to a limited extent, his background and rehabilitation.
Mr Paerau first arrived in Australia in December 1992 and, after returning to New Zealand for a few months, returned in April 1993 to take up residence. He travelled to New Zealand for about a month in December 1993 then returned to Australia on 21 January 1994. He has resided in Australia since this time. According to a Compulsory Drug Treatment Personal Plan dated 12 March 2008, recorded as devised in consultation with Mr Paerau by Ms Denise Constantinou, Forensic Psychologist, Mr Paerau began experimenting with marijuana when he was 14 years old and graduated to drugs such as heroin by the time he was 17 years old. He was said to have strained relationships with his family and his closest support at that time was his partner, with whom he had two young children at that stage. Mr Paerau’s formal education reportedly ceased when he moved to Australia, although he has completed a number of TAFE courses. Mr Paerau had a series of short periods of employment from the age of 15 years old, with his longest period of employment said to be working as a forklift driver for approximately one year when he was 24 years old.
According to a referral from D Davis-Cotter (Health Assessor, Beenleigh Drug Court) dated 20 October 2011 to Goldbridge Rehabilitation Services, Mr Paerau was the youngest of five children - he has four older sisters. Mr Paerau described his father as a heavy drinker who would become abusive when drunk. His parents split after the family arrived in Australia and, after initially living with his mother and sisters, Mr Paerau moved in with his father in Sydney. He became involved with local youths, reportedly became involved in “trouble” and left home when he was about 15 years old.
Mr Paerau was convicted of a number of stealing and break and enter offences in September 1995 and was ordered to serve 18 months on probation. He was convicted as an adult on 31 October 1996 and ordered to serve 6 months periodic detention. Thereafter, Mr Paerau was in and out of prison for short periods until 16 October 2000, when he was sentenced to 16 months for dishonesty offences. He reoffended soon after being released and was convicted of around 22 offences between October 2000 and December 2004.
On 8 December 2004, the Department sent to Mr Paerau a Notice of Intention to cancel his visa, together with supporting documentation. He acknowledged receipt on 10 December 2004. Mr Paerau’s visa was not cancelled at that stage. Notwithstanding this Notice, Mr Paerau continued to commit offences and on 15 June 2005, he was sentenced to a term of imprisoned for 20 months for driving whilst disqualified. Mr Paerau appealed the severity of the sentence and on 8 September 2005, Judge Hulme SC in the District Court New South Wales dismissed the appeal, noting as follows:
The appellant has a criminal and traffic record that does him no credit, and that is to put it mildly. There are in excess of twenty-five offences of dishonesty - larceny, taking and driving a conveyance, break, enter and steal, receiving goods in custody, and offences all of that nature.
His driving history includes multiple offences of driving whilst disqualified, or driving whilst unlicensed. He has never held a driver’s licence. He has been sentenced to imprisonment on the more recent occasions of being convicted of driving whilst disqualified, and it appears that this has not deterred him from continuing to do so.
…
In this case, whilst there is some hope that there is a process of rehabilitation the offender may undergo, there is little to give confidence in that all I have before me is the hopes of the appellant, but given his history it is something that must be taken to be just that, his hope. It will be measured by the commitment that he shows to his own rehabilitation in the months and years to come that it is necessary for me, if I am to do my duty at all, to ensure that he is adequately punished for his offence and to deter him, and to protect the community from him, and to make him accountable for his actions, and to denounce his conduct, and so having regard to all of those considerations which the law requires me to take into account, for a man who has some ten entries on his traffic record of driving when he was either not licensed to do so or he was disqualified for doing so, and for a man who has been on, at least, five occasions as I count then, been the subject of habitual offender declarations, to my mind the penalty imposed by the magistrate is the least that could be imposed, in the circumstances.
In March 2007, Mr Paerau was served with a further Notice of Intention to cancel his visa and 1 November 2007, while he was in Parramatta Correctional Centre on remand, Mr Paerau was served with a letter of warning to the following effect:
You were informed by a notice dated 5 March 2007 that the Minister for Immigration and Citizenship (the Minister) intended to examine whether there were grounds to cancel your Special Category visa, subclass TY 444, granted on 1 September 1994, under subsection 501(2) of the Migration Act 1958 (the Act).
You did not respond to the notice, despite your ascertain (sic) to the contrary. On this occasion, on 18 June 2007, a delegate of the Minister has exercised her discretion and decided not to cancel your visa under subsection 501(2) of the Act. The delegate has made the following comments in relation to her decision in your case:
“In deciding to warn Mr Paerau, I have given weight to the fact that he has not previously been warned. I find this case borderline and would like a strong warning letter sent.”
However you warned that if you engage in any further contact that might bring you within the scope of section 501, cancellation of your visa may be considered again. Consideration may also be given to refusing any future visa applications. Please note that disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the Act is attached for your information.
On 27 November 2007, Mr Paerau was convicted of eight offences of dishonesty, drug and serious traffic offences (including driving under the influence and driving recklessly or in a manner dangerous). He was sentenced to a period of imprisonment of up to 22 months, with a number of the sentences ordered to be served concurrently. Mr Paerau was also disqualified from driving for life. In sentencing Mr Paerau, the Magistrate noted as follows:
By the time you’ve got to the situation Mr Paerau’s in it’s actually no longer about Mr Paerau. It’s about the rest of us out here. My God, my kids, your kids could have been in any number of those cars.
....
Mr Paerau, you seem to be under no illusions, your behaviour, what you have done to yourself in terms of putting in your body makes you, I will not try and sugar coat it, makes you unfit to live with the rest of us for a period because you have endangered an enormous number of the community. By the grace of God no one got hurt that night but you need to understand an enormous number of people’s cars got damaged
As I have raised with Ms Hall no one can have any confident realistic hopes for rehabilitation so it comes down to a matter of me protecting the community by keeping you out of it for a substantial period of time because if I have no other job my job is the protection of the community and I do that by way of sentences.
Mr Paerau was released into community supervision in 2009 but absconded to Queensland, where he continued to offend, being convicted of over 30 dishonesty, drug and traffic offences from 2009 to 25 January 2012. He was ordered to undergo intensive drug rehabilitation and, as noted earlier, his sentence of two years and six months ordered on 19 July 2011 was wholly suspended for this purpose. Similar orders were made on 25 January 2012 in respect of convictions for dishonesty offences, to which Mr Paerau was sentenced to a period of imprisonment of six months.
Mr Paerau participated in various intensive drug programs in Queensland but was discharged from the most recent program with Goldbridge Rehabilitation Services after a month for breaking the community rules. He was rearrested in New South Wales for absconding and served approximately 4 months in prison until he was released on parole into the Villawood Detention Centre.
Mr Paerau’s previous experience in drug rehabilitation programs in New South Wales was also unsuccessful as evidenced by a report dated on 30 September 2009 by Ms Candice Nielsen, specialist psychologist, who recommended that Mr Paerau’s rehabilitation order be revoked because of a ‘serious breach’ of his personal plan. Mr Paerau had absconded to Queensland and a warrant was issued for his arrest in August 2009. Ms Nielsen noted that Mr Paerau was “[u]nlikely to make further progress in the program” and that he “[p]oses an unacceptable risk to the community of reoffending”.
According to a Pre-Release Report from the New South Wales Probation and Parole Service dated 6 August 2012, Mr Paerau has six children (there is a suggestion in another report that he has eight) but had no contact with the three eldest children from previous relationships. He was separated from his partner but had three children from this relationship and had regular contact with those children - twins aged two and a half years old and an eight-month baby.
Little is known about Mr Paerau’s relationship with his children, although included in the documents tendered by the Minister was a Report of a reasonable suspicion of child abuse and neglect dated 2 April 2011. There was no further detail about this report or whether the suspicion referred to in the report was investigated. As such, little could be drawn from this information. However, there was a report provided by the Queensland Police Service recording a temporary domestic violence order made on 24 November 2009 against Mr Paerau in respect of his former partner and four of her children, two of which were the twins from Mr Paerau’s relationship with his partner. It appears that a protection order was made against Mr Paerau in respect of this matter on 23 November 2011.
SUBMISSIONS OF THE PARTIES
Mr Paerau accepted that he has a serious criminal history in Australia but says he is not a violent person, as demonstrated by the nature of his offences, and his criminal offending has been driven by his drug use. Mr Paerau has lived in Australia since he was 14 years old and has spent nearly 20 years in this country. He wants to stay in Australia to be close to his children and contends this would be in their best interests. Mr Paerau submitted that these matters should be taken into account by the Tribunal and his visa should therefore not be cancelled.
The Minister contended that the protection of the Australian community weighed heavily in favour of cancelling Mr Paerau’s visa. His criminal history reveals a pattern of increasing seriousness and his drug addiction does not excuse his offending, it adds to concerns he may reoffend. He is a high risk and has committed crimes shortly after being released from prison or while on bail or parole. There is no evidence that Mr Paerau has been rehabilitated. The Minister accepted that Mr Paerau has lived in Australia for many years but contended that the Tribunal there was no evidence he had made a positive contribution and given his criminal history and time in custody, it could inferred his contribution to the Australian community over the past 20 years was largely negative. There was no evidence about Mr Paerau’s ties to Australia and the fact that he had commenced offending so soon after arriving in Australia weighed against him, or alternatively, was at least a neutral consideration. There was little evidence about Mr Paerau’s relationship with his children and there was no evidence about the factors set out in Direction no. 55 in respect of which the Tribunal could make a determination about the best interests of Mr Paerau’s minor children. This consideration should be given little weight or was neutral. The only other consideration that was relevant was whether Mr Paerau would face any impediment if he were to return to New Zealand. There was no evidence of any impediment and this consideration was therefore neutral, or weighed in favour of cancellation.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Clause 9.1(1) of Direction no. 55 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm. It is further stated that:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, regard must be had to the nature and seriousness of the conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct (cl 9.1(2)).
Any conduct that forms the basis of a finding that a person does not pass the character test is considered to be serious (cl 9.1.1(1)(d)). Regard must be given to the sentence imposed, the frequency of the person’s offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending (cl 9.1.1(1)(e) – (g)). Violent and/or sexual crimes are viewed very seriously (cl 9.1.1(1)(a)) and whether the person has re-offended since being formally warned about the consequences of further offending on the person’s migration status must be taken into account (cl 9.1.1(1)(i)).
In considering whether a person represents an unacceptable risk of harm to the Australian community, decision-makers should have regard to the principle that tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)). Clause 9.1.2 provides that in making this assessment decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) the likelihood of the person engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time in the community since their most recent offence.
It was not in dispute that from at least the age of about 16 years old, Mr Paerau has had a serious drug problem and his substance abuse has led to repeated and frequent criminal offending. He has been convicted of over 81 offences since 1995 and has served over 8 years in prison. His offences have mostly been dishonesty offences of break and enter, stealing and traffic offences that include reckless and dangerous driving and driving under the influence. Mr Paerau has repeatedly breached judicial orders and has numerous convictions for failing to appear in court, breach of bail conditions and breaching driving disqualification orders. His record, and his continual disregard of disqualification orders, was considered to be so serious that Mr Paerau has been disqualified from driving for life. Mr Paerau was given many warnings and opportunities for rehabilitation but they apparently had little effect. There is no record of Mr Paerau having successfully completed the various drug rehabilitation programs ordered and Ms Neilson’s comments in her report of 30 September 2009 were prophetic, Mr Paerau having failed to complete his intensive drug rehabilitation program in Queensland.
Mr Paerau’s criminal conduct is serious, primarily because of the frequency and cumulative effect of his repeat offending. The seriousness is exacerbated by the fact these offences were perpetrated after Mr Paerau was warned or made aware of the consequences of criminal offending by the Department. Mr Paerau committed further criminal offences after becoming aware of the possibility of the cancellation of his visa in December 2004 and receiving a warning from the Department in 2007.This is a matter in respect of which the Tribunal must have regard when considering the nature and seriousness of the person’s criminal offending under cl 9.1.1(1)(i) of Direction no. 55.
Mr Paerau has a long history of drug addiction and several failed attempts at rehabilitation. It is relevant that he has been given several opportunities in the past but has failed. There is a pattern of reoffending soon after release from incarceration and the most recent Pre–Release reports from the New South Wales Probation and Parole Service indicate that Mr Paerau is at risk of reoffending. Parole was not recommended and Mr Paerau was only released on parole into immigration detention once the Service was notified of the decision to cancel Mr Paerau’s visa. The Minister submitted that the risk Mr Paerau will reoffend is high.
On the available evidence, I am satisfied that there is, at the very least, a real risk Mr Paerau will reoffend in the future. A ‘real risk’ of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493. Taking into account Mr Paerau’s criminal history, the evidence of his repeated breach of judicial orders and the lack of any evidence of rehabilitation, I find that the risk Mr Paerau will reoffend is significant.
Given this risk, the issue for consideration is whether the nature of the risk is “unacceptable”. As noted in cl 9.1.2(1), “decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”. In this case, if Mr Paerau is allowed to remain in Australia there is a real risk his criminal offending will continue on a similar pattern as his previous offending, as recently as July 2011 and January 2012. While his crimes were not violent, many of his crimes involved dangerous behaviour and serious loss to the community through his persistent offences of stealing motor vehicles, driving while unlicensed and driving dangerously or under the influence. In many cases, the vehicles stolen by Mr Paerau were damaged but, as noted by the sentencing Magistrate in 2007 and Judge Hulme in 2005, it has been fortunate that members of the community were not injured by Mr Paerau’s conduct. Driving offences of the nature perpetrated by Mr Paerau are serious because of their potential for harm (refer Pang and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 796 and Tuitaalili and Minister for Immigration and Citizenship [2011] AATA 144).
Having regard to these matters, I find that the consideration of the protection of the Australian community weighs heavily in favour of cancelling Mr Paerau’s visa.
Strength, duration and nature of ties to Australia
Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Migration Act, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted in the cl 6.3 principles, “a higher level of tolerance” of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a “positive contribution to the Australian community” and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations.
In this case, there is little evidence about Mr Paerau’s links to Australian citizens or permanent residents who have a right to remain in Australia. There is evidence Mr Paerau’s parents are deceased and he has some contact with an older sister who lives in Australia but apparently not with the rest of his family. His former partner (the mother of his youngest three children) advised the Probation and Parole Service on 8 August 2012 that she was no longer in a domestic relationship with Mr Paerau and she would not provide support for Mr Paerau’s proposed post-release accommodation. The only evidence that Mr Paerau has regular contact with his children is the reference to Mr Paerau’s own statement to the Probation and Parole Service as recorded in the Pre-Release Report dated 6 August 2012. No references or written statements were provided to the Tribunal or to the Minister to support Mr Paerau’s application for review regarding this matter, or at all.
The available evidence suggests that Mr Paerau’s periods of employment in Australia have been brief and that he has either been in custody or on Centrelink benefits for much of the past 17 years.
Mr Paerau commenced offending within two and a half years of arriving in Australia and according to the Minister, this weighs in favour of cancellation: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.
In summary, while Mr Paerau arrived in Australia as a teenager and has spent nearly 20 years living in Australia, there is no evidence of Mr Paerau making a positive contribution to the Australian community or building strong ties in Australia with family, work colleagues, friends or his children. While there is evidence Mr Paerau had a troubled youth when he first arrived in Australia with his parent’s separation and difficulties at school, the preponderance of the evidence is that Mr Paerau’s drug taking and criminal offending have dominated his life since he was about 16 years old. This consideration does not weigh against cancellation and, at best, is neutral. Arguably, it weighs in favour of cancellation that Mr Paerau commenced offending so soon after arriving in Australia and continued on the course over the next 17 years.
Best interests of minor children in Australia affected by the decision
Direction no. 55 requires that the decision-maker determine whether visa cancellation is or is not in the best interests of a relevant child or children under 18 years old (cl 9.3(1)-(2)). Clause 9.3(4) lists a number of factors that must be considered where relevant. They include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in the future, the impact of the person’s prior conduct and any likely future conduct, the likely effect that any separation from the person would have on the child, whether there are other persons who already fulfil a parental role, any known views of the child, evidence that the person has abused or neglected the child and evidence that the child has suffered or experienced any physical or emotional drama arising from the person’s conduct.
As noted above, there is little evidence about Mr Paerau’s contact with his children, although there appears to be no dispute that the only children with whom Mr Paerau has any regular contact are his three children to his former partner. The nature and extent of this contact is unclear but it is relevant to note that two of those children were the subject of domestic violence orders in 2009 and 2011.
Given the paucity of evidence, I cannot be satisfied about whether it is in the best interests of Mr Paerau’s minor children for Mr Paerau to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. As such, this consideration does not weigh against cancellation and, at best, is neutral.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant. There are four considerations listed, of which only one is said to be relevant to Mr Paerau.
The first non-primary consideration listed in cl 10 is the effect of cancellation on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. There is no evidence about this issue, other than the evidence referred to earlier. As such, this factor does not weigh against cancellation.
The Minister contended that the only other non-primary consideration that was relevant to Mr Paerau’s case was the fourth matter set out in clause 10(1)(d), namely the extent of any impediments that the person may face if removed from Australia to their home country. There are no real impediments to Mr Paerau in returning to New Zealand given that the basic living standards between New Zealand and Australia are similar, there are no language or cultural barriers and Mr Paerau is still a young man and in good health. On balance, this factor does not weigh against cancellation of Mr Paerau’s visa.
CONCLUSION
The fact that Mr Paerau was a teenager when he arrived in Australia, has lived in Australia for much of his teenage years and all his adult life and has children in Australia would normally be factors that would weigh against cancellation of a visa. However, in this case there is little evidence about Mr Paerau’s links with the Australian community or his relationship with his children. In contrast, there is evidence that Mr Paerau has a serious and lengthy criminal history, he is at risk of reoffending, there is potential for harm if he reoffends and he was warned, or was on notice, of the consequences of breach. There are no significant impediments in him returning to New Zealand.
As noted in cl 6.3 of Direction no. 55, remaining in Australia is a privilege conferred on non-citizens in the expectation they are, have been and will be law abiding. Mr Paerau has abused this privilege and has spent a significant part of the past 17 years either committing criminal offences or in custody.
Weighing all the relevant considerations in this matter I therefore conclude that the correct and preferable decision is that the decision of the delegate should be affirmed.
68. I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
.................[Sgd]..................................
Associate
Dated 15 November 2012
Dates of hearing 7 and 8 November 2012 Applicant In person Solicitor for the Respondent Ms L Weston, Minter Ellison
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