JOHN ROPIHA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 689
•8 October 2012
[2012] AATA 689
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3103
Re
JOHN ROPIHA
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Senior Member J L Redfern
Date 8 October 2012 Place Sydney The decision under review is set aside and a decision substituted that the Applicant’s visa not be cancelled.
........[sgd]................................................................
Senior Member J L Redfern
CATCHWORDS
MIGRATION – Class TY, Subclass 444 Special category (Temporary) visa – cancellation – character test – substantial criminal record – protection of the Australian community – real risk of re-offending – whether nature of the risk is unacceptable – strength, duration and nature of ties to Australia – arrived as a baby – best interest of minor children – other considerations – decision under review is set aside
LEGISLATION
Migration Act 1958 s 501
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 23 ALN 81
Re Wipa and Minister for Immigration and Citizenship [2012] AATA 125
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Senior Member J L Redfern
8 October 2012
Mr John Ropiha is a 31 year old man who migrated to Australia with his family in 1981, when he was 5 months old. He is a citizen of New Zealand. Apart from several short trips to New Zealand before 1986 and six months living with his grandmother when he was 14 years old, Mr Ropiha has resided in Australia since this time. Mr Ropiha was granted a Class TY Subclass 444 Special Category (Temporary) visa on 16 March 1996, which allows the holder to remain in Australia indefinitely while they remain a New Zealand citizen. His father and mother live in Australia and he has five siblings, who were born in Australia and are Australian citizens. He has no family or other ties in New Zealand and has eight children, all of whom are under 18 years old, who were born and reside in Australia.
Mr Ropiha has a history of criminal conduct commencing when he was 13 years old. His juvenile offences included larceny, shoplifting, two charges of resisting an officer when he was 15 years old and assault and common assault when he was 17 and 18 years old. He was cautioned, fined and given non-custodial sentences for these various offences until April 2000, when he was sentenced to 8 months’ imprisonment for break and enter, and resisting arrest. Thereafter, Mr Ropiha was convicted of numerous offences and served approximately seven years in prison until 1 July 2012, when he was released from Wellington Correctional Centre. Mr Ropiha engaged in a pattern of reoffending while on parole and spent most of his years from the age of about 23 until 30 years old in prison. These years were punctuated by brief periods living in the community, during which time he formed a relationship with his current partner.
On 5 July 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Ropiha’s visa. Mr Ropiha seeks a review of that decision. After his release from prison, Mr Ropiha lived in the community for two weeks before being taken into immigration detention at Villawood, where he has resided since mid-July 2012.
The Minister has a discretion to cancel a visa if Mr Ropiha does not satisfy the character test set out in the Migration Act 1958 (the Act). Mr Ropiha does not satisfy this character test because of his criminal history and the issue for determination is how this discretion should be exercised in the circumstances of this case. If Mr Ropiha’s visa is cancelled, he will be removed to New Zealand.
LEGAL FRAMEWORK
Section 501(2) of the 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 Ropiha 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 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 direction (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 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 Ropiha’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 [41]). On 28 July 2012, the Minister issued a new direction, Direction no. 55 (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 [41].
There are material differences between these Directions, although both provide for primary and other considerations to be taken into account in exercising the discretion under s 501 of the Act. The key differences are that there is a distinction made between the cancellation of an existing visa and refusal of a visa, Direction no. 55 sets out principles that are to provide a framework for decision-makers when exercising the discretion and a number of the factors that must be considered when assessing the primary and other considerations have altered.
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)) and 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 that the other considerations and one or more of the primary considerations may outweigh other primary considerations.
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.
THE EVIDENCE
In addition to documentary evidence about Mr Ropiha’s criminal history and his conduct while in prison and on parole, the Tribunal was provided with various pre-sentencing reports from the New South Wales Probation and Parole Service, transcripts of sentencing remarks from the Local and District Courts and other records from New South Wales Corrective Services, the Police and Justice Health. Statements were also provided by Mr Ropiha’s family, his aunt, his current partner and her aunt and two of his children. Oral evidence was given by Mr Ropiha and all of the people who provided statements or letters of support.
There is little factual dispute in this matter. Mr Ropiha took residence in Australia with his mother and father in December 1981 when he was five months old. He went to school in Sydney but left in Year 7 at high school. He has five siblings – two brothers and three sisters. They were all born in Australia and are now aged between 28 and 22 years old. Mr Ropiha is the oldest child and from a relatively early age, he looked after his brothers and sisters while his mother was working. His father was an alcoholic for many years and was violent and abusive at home. His parents separated for a short period when Mr Ropiha was young but his father reportedly rehabilitated in 2006. When Mr Ropiha was 13 years old he was charged with break, enter and steal, larceny, malicious damage and goods in custody. He was sentenced to probation to be of good behaviour for 18 months. He offended again in 1995 and went to live in New Zealand with his grandmother for a short period. He did not return to school and started using drugs and alcohol from the age of about 13 or 14 years old. This became a lifelong addiction and, on his own admission, Mr Ropiha has not been drug free for more than a week or so until nine or ten months when he stopped using drugs “cold turkey”.
Mr Ropiha formed a relationship with the mother of five of his children in 1996 when he was 15 years old. She was five years older than Mr Ropiha and they reportedly had a volatile relationship. They lived together for about 8 years until about 2004, when they finally separated. Their first child was born in 1997 and is now nearly 15 years old. Their second child was born in 1998 and is now nearly 14 years old. Both children, a boy and a girl, live with Mr Ropiha’s mother and gave evidence at the hearing. His other children from this relationship are 13, 8 and 7 years old and they live with their mother. Mr Ropiha has two other children, a boy who is 14 years old and a girl who is about 4 years old, from casual relationships. He does not have contact with them.
In early 2008, Mr Ropiha met Ms Cindy MacDonald. They started a relationship at that time and began living together for a short period until Mr Ropiha returned to custody in March 2008. He was released in October 2008 and they had a child, born in early November 2008. Mr Ropiha returned to custody within months and served 18 months, primarily at Bathurst Correctional Centre. He was released in July 2010 on parole but his parole was revoked in October 2011 and he returned to custody for just over four months. After less than two months back in the community, Mr Ropiha was again arrested and in April 2011 commenced a 3 year sentence, with a non-parole period of 15 months. He was released on 1 July 2012 and lived with Ms MacDonald for two weeks before he was removed to immigration detention. Mr Ropiha and Ms MacDonald have therefore been in a relationship for just over four and a half years but in that period they have only lived together for about seven months, although they have kept in contact while Mr Ropiha has been in custody and Ms MacDonald regularly visited him at each Correctional Centre, with the exception of the Wellington Correctional Centre, where he was incarcerated for the first six months of 2012 until his release.
Mr Ropiha first started offending in 1994 when he was 13 years old. Between 1994 and 2000 he was convicted of 17 offences, mostly stealing related offences but a number of the charges also involved assault and resisting arrest. He was sentenced as a juvenile offender and given the benefit of probation, fines and good behaviour bonds. In his first offence as an adult, Mr Ropiha was sentenced to 8 months’ imprisonment for break and enter in company, related stealing offences and resisting police. Mr Ropiha committed further stealing/larceny offences in 2001 and 2002 but was also charged with assault occasioning actual bodily harm, having an offensive weapon and resisting a police officer. He served two consecutive sentences of six months in Parramatta, Windsor and finally Bathurst Correctional Centres.
Mr Ropiha was released in October 2002 but after 14 months committed further stealing offences. There was a run of these offences and on one occasion in March 2004, Mr Ropiha had his eldest son, who was 6 years old at the time, with him. He was placed on a 12 month good behaviour bond with a condition that he accept the supervision and guidance of the NSW Probation and Parole Service but according to a pre-sentence report from the Service dated 2 July 2004, his response to supervision was “less than satisfactory”. On 10 February 2005, he was sentenced for larceny, goods in custody, failure to appear while on bail, breach of an apprehended domestic violence order against his former partner, assault occasioning actual bodily harm and carrying a cutting weapon. He was sentenced to 12 months’ imprisonment, with a non-parole period of 6 months but the Magistrate found “special circumstances” and gave Mr Ropiha a warning as follows:
… you’re only very young, you’ve got an option at this point, as I see it you can either do your best endeavours to overcome the problem in relation to prohibited substances and live your life as a law-abiding citizen or if you don't and you choose to continue with the drugs you will end up in prison for a lot longer and you will spend most of your young life in prison. It’s simple, I see it every day, so you’ve got choice to make and it’s up to you.
Mr Ropiha did not heed this advice and breached his bond. The bond was revoked and Mr Ropiha was sentenced to six months in prison, commencing April 2006. Mr Ropiha was also sentenced on two other matters for a further 12 months, with a non-parole period of six months. In his sentencing remarks of 12 April 2006, the Magistrate observed:
Mr Ramsay [Mr Ropiha’s alias] you are a drug addict sir and as a result you are a thief. Both instances depict that cash you were after and I trust cash for the purposes of providing yourself with illicit substances and such has been your life for a lengthy period of time. You have been part of the juvenile justice system or the criminal justice system in this state since 1994. It would appear to me looking at your record you have on a number of occasions been afforded the opportunity of assistance by the court, recommendation that you enter rehabilitation programmes, both drug and alcohol... Be that as it may, you continue to use drugs, you continue to commit crimes for the purpose of supplying those drugs.
Mr Ropiha appealed this decision. Judge Hulme heard the appeal in the District Court and in his decision of 7 June 2006, he noted that Mr Ropiha had “an extensive criminal history including matters of dishonesty and matters of relatively minor violence”. He allowed the appeal but “not without some misgivings” and stated that he thought Mr Ropiha was “worth one last chance”. It was recommended that Mr Ropiha be required to enter a full time residential rehabilitation program.
As a result of the successful appeal Mr Ropiha was released in January 2007 but was sentenced on 28 May 2007 with break, enter and steal and drug related offences. He served 8 months in prison, variously at Mannus, Junee, Parramatta and Bathurst Correctional Centres. Mr Ropiha was released in January 2008 and it was at this time he met Ms MacDonald and they began living together. His time in the community was brief and he was sentenced for a further break and enter offence He was released before the birth of his youngest son but taken back into custody within months and on 22 June 2009 was sentenced to imprisonment for 2 years (commencing in January 2009), with a non-parole period of 18 months, for affray. This offence related to a retaliation attack on another family for a home invasion on “Kids Home”. Mr Ropiha and his accomplices were armed with bats, knives and metal poles. According to the sentencing remarks of the Magistrate, Mr Ropiha became involved in a fight with a member of the other family and the fight continued until they both became exhausted. The incident escalated the following evening and a number of persons involved in the original affray were injured the following evening, although Mr Ropiha was not charged with any offences relating to these later incidents. In sentencing Mr Ropiha, the Magistrate expressed concern about Mr Ropiha’s “troubled history” and the fact he was avoiding responsibility for his actions in blaming his co-offenders.
Mr Ropiha was released in July 2010 but his parole was revoked within three months and he returned to prison in October 2010. On 9 September 2011, Mr Ropiha was sentenced to 3 years’ imprisonment with a non-parole period of 15 months, for various offences including break and enter, larceny, resisting a police officer and assaulting a police officer on duty. The sentencing judge noted that Mr Ropiha had previously attempted six residential programs, all of which had been unsuccessful, and Mr Ropiha had been evicted from each of the programs and was evicted from one due to “intimidative behaviour”.
After this sentencing, Mr Ropiha was also sentenced for various offences arising out of an earlier incident in May 2011 two days after being granted bail, being larceny, escape while in custody, resisting an officer, stalking and using an offensive weapon. Mr Ropiha had an altercation with a former friend and went to his house with a screw driver. The sentencing Magistrate was satisfied Mr Ropiha had intended to harm his former friend. Police became involved and according to the Magistrate, Mr Ropiha “went walkabout” within the police station. He was given various sentences of up to 8 months but they were to be served concurrently and the result was that there was no change to his effective term of imprisonment. Mr Ropiha was released on 1 July 2012.
According to an Immigration Report from the Probation and Parole Service dated 4 April 2012, during Mr Ropiha’s last period in incarceration, he was charged with 11 institutional misconducts for failure to follow routine and obey directions. He was subject to two segregation orders between 27 September 2011 and 10 October 2011 for threat to good order and discipline and from 12 December 2011 to 25 December 2011 for inciting a disturbance. In the latter incident, Mr Ropiha was involved in a fight with 15 other inmates. Mr Ropiha reportedly completed the Getting SMART program during his previous period of incarceration and participated in two sessions of the SMART Recovery program and Alcoholics Anonymous (AA) and attended one session of the program, Managing Emotions. It was noted that Mr Ropiha had no confirmed employment opportunities post-release. He was assessed as having a Medium/High likelihood of reoffending according to the LSI-R assessment tool. The author of the report noted as follows:
It is of concern that during the period of incarceration the inmate has been charged with numerous institutional misconducts and on two occasions has been placed on segregation orders. However it is positive that the inmate has completed the Getting SMART program during his last period of custody and is undertaking the SMART Recovery program and AA. It would appear that he has gained some insight of the impact that his substance abuse has had not only on his offending behaviour but also his relationships with family and friends.
The various pre-sentencing reports tendered consistently recorded Mr Ropiha’s troubled childhood and his substance abuse as the source of his criminal offending. Mr Ropiha breached parole and good behaviour bonds on numerous occasions and failed to attend or complete drug and alcohol counselling and rehabilitation programs. He had also been charged with numerous institution misconducts in his previous periods of incarceration. Relevantly, the Probation and Parole Service report to the State Parole Authority dated 24 August 2010 noted that Mr Ropiha’s response to supervision had been “poor”. In particular it was noted:
Mr Ropiha presented with a multitude of issues including traditional non-compliance with Parole, mental health, alcohol and other drug abuse and anger management. Efforts to address the above criminogenic factors have been thwarted by his failure to attend appointments.
According to records from New South Wales Corrective Services, Mr Ropiha’s parole was revoked on at least six occasions between 2000 and 2012.
Mr Ropiha tendered documents produced by NSW Justice Health under summons which showed that Mr Ropiha has had substance abuse problems since at least 2000. This is not in dispute.
The Department of Immigration and Citizenship notified Mr Ropiha that consideration was being given to cancel his visa under s 501 of the Act on two previous occasions. Mr Ropiha’s visa was not cancelled but he was given formal warnings on 22 January 2008 and 1 June 2010 to the effect that if he committed further offences, cancellation of his visa may be reconsidered and “disregard of this warning will weigh heavily against you”. Mr Ropiha acknowledged he had received these warnings.
Mr Ropiha said that his early years had an effect on him and he used drugs and got in trouble to “escape” from his life at home. He was young when he met his former partner and they moved in together when he was 15 years old. He had a role in parenting the children and even though they had a volatile relationship, he and his former partner stayed together for 8 years. They constantly argued but Mr Ropiha said that this was never in front of the children. Given his troubled childhood and the domestic violence he had witnessed, Mr Ropiha said he was careful not to expose his children to their fights. They separated in 2004 and his partner took the children away. He had little contact with them between about 2004 and 2009. In 2009 his five children went to live with his mother and he had contact with them by telephone or saw them when he was not in prison. Three of the younger children moved back with their mother but his contact continued with the older children. Mr Ropiha agreed that his contact with his children was limited by his incarceration, although he said he attempted to maintain telephone contact.
Mr Ropiha met Ms MacDonald in early 2008. His youngest child was born in November 2008. He took on a parental role with his young son but there were long periods of separation as a result of his incarceration from early 2009. As noted previously, Mr Ropiha has only spent about seven months living in the community since March 2009. Despite this, Mr Ropiha said that Ms MacDonald regularly visited him in prison with his son until he was transferred to Wellington Correctional Centre in January 2012, which was considered to be too far away for her to visit.
Mr Ropiha said he had undertaken some courses while in custody but agreed that previous attempts at drug rehabilitation had been unsuccessful as he found them too difficult. Mr Ropiha received the warnings from the Department but did not appreciate their significance - he did not take his life as seriously as he should have during his period of drug addiction. He accepted that his criminal record was serious and he had received many opportunities and warnings in the past. Mr Ropiha said he was now drug free and had been for 9 or 10 months. He referred to random drug testing on 8 April 2012 while he was in Wellington Correctional Centre which he said showed he was drug free. The records confirm the testing but not the results. Given there are no records of failed testing or institutional breaches relating to this matter in the NSW Correctional Services documents, it can be inferred Mr Ropiha passed this testing. Mr Ropiha could not explain why he was only now drug free after so many years of addiction and failed attempts at rehabilitation but said that he was older and had finally accepted that he was the only one who could change his life. He said that drugs were easy to access in prison and immigration detention and his incarceration was not the reason he was no longer taking drugs. He was confident he would remain drug free and therefore would not reoffend.
Mr Ropiha said he had changed and was no longer a threat to society. He was hoping to further his education and complete some counselling courses so he could undertake youth work. Mr Ropiha agreed he had been absent from his children’s lives in the past because of his incarceration and the negative effect of his drug taking, but said he loved his children, he had a parenting role in the lives of his five children from 1996 until 2004, he had a close relationship and was a positive influence on his youngest son from the time he was born, notwithstanding his time in prison. He had tried to maintain contact with six of his children and believed he could have a positive influence in their lives in the future.
Mr Ropiha said that now he was drug free he had a close relationship with his siblings, similar to the relationship when he was younger, when he had provided guidance and a parenting role as the oldest in the family. He was in constant telephone contact with them and they often visited him since he had been in immigration detention at Villawood.
Mr Ropiha agreed that there were instances of violence in the past, especially when he was in prison. He found it hard to control his temper in prison – it was a tough environment.
Ms MacDonald said that she and Mr Ropiha commenced their relationship in early 2008. She agreed they had spent long periods apart but she had visited him in prison regularly and they talked over the telephone. Video link visitations had been organised for her and their young son through an organisation known as “SHINE for Kids” when she had been unable to visit in person. Ms MacDonald agreed that she had told the probation officer in April 2012 that their relationship was “rocky” because of Mr Ropiha’s drug use and criminal offending, but she never said that the relationship had ceased. This was incorrectly reported. During the time Mr Ropiha was in prison, their relationship had continued through visits, the video links and regular telephone calls. She had noticed a change in Mr Ropiha over the past nine months. When he came out of prison in July 2012, Ms MacDonald said she was able to see that Mr Ropiha was drug free - he has changed. They discussed getting married at this time and she decided to book their wedding, which was arranged for 11 October 2012.
Ms MacDonald said that their young son was extremely close to Mr Ropiha and he had shown signs of anxiety when his father was taken to Villawood in mid July 2012. He has settled down since this time and they visit Mr Ropiha every few days at Villawood. In her opinion, it would have a significant effect on their son if Mr Ropiha was forced to leave Australia. It would also have an effect on her other children, who are 18, 16, 7 and 5 years old. All but the 18 year old live at home with Ms MacDonald and on her account, they all have a good relationship with Mr Ropiha. If Mr Ropiha was forced to return to New Zealand, she would have to consider moving with him, although she would find it very difficult because all her family, friends and other ties are in Australia. Mr Ropiha’s mother and her aunt provide Ms MacDonald with assistance and Ms MacDonald said she has two jobs, which she would have to leave. She would take her children with her but they would also find it difficult, having lived here all their lives. Ms MacDonald said that if Mr Ropiha started taking drugs again she would leave him.
Mr Ropiha’s mother, Mrs Barbara Ropiha, gave evidence. She said that Mr Ropiha had little contact with his children from his previous relationship from about 2004 until they moved in with her in 2009. The younger children had moved back with their mother but the two older children were still living with her. The children were close to Mr Ropiha but especially the two older children, who wanted to live with him. Mr Ropiha was very close to his brothers and sisters and she felt guilty about his early life and the role he had been required to perform in looking after his brothers and sisters when she returned to work. He would feed them and put them to bed. Mrs Ropiha said he did a very good job and there were never any problems but she felt that the environment of domestic violence and these early responsibilities were the reasons behind Mr Ropiha’s troubled youth and drug taking. She was very close to him because he was her oldest child and she had confided in him during the difficult years. In her opinion, his siblings and his children, particularly the two older children from his former relationship, would be devastated if he was removed to New Zealand. She would also be devastated.
Mr Ropiha’s two oldest children gave evidence and provided written statements to the Tribunal. Both stated that they remembered their father from when they were younger but had little contact with him for a long time. They started having contact about three or four years ago and hoped to live with him in the future. Mr Ropiha’s older son said that he sees his father in Villawood and speaks to him regularly over the telephone. He talks to his father about his problems. He does not want his father to leave Australia. He agreed that he had little contact with his father prior to three years ago and could not really remember the early years of living with his father very well. Mr Ropiha’s daughter was upset about the prospect of her father having to leave Australia.
One of Mr Ropiha’s brothers and his three sisters gave evidence and provided written statements. Their evidence was consistent. They had a very close relationship with Mr Ropiha when they were younger. He looked after them and they looked up to him as a role model and father figure. When Mr Ropiha was taking drugs and was in prison, their relationship was distant and it was very difficult to communicate with him. They were distressed by this and missed the close relationship and his guidance. They had all noticed that there was a significant change when he came out of Wellington Correctional Centre in July 2012. This was a welcome change and they felt they could re-establish their relationship with him. His brother and sisters said that they now had a very good relationship with Mr Ropiha and all said they could (and did) speak to him to seek guidance. Two of his sisters said they would be “devastated” and “heartbroken” if he was to return to New Zealand. His brother said that he had an accident a year ago and has suffered some cognitive impairment. It had been very difficult for him in the past year but he has been able to confide in his brother and this has helped. In his view, his brother could make a positive contribution to the family because he knew how to keep the family together.
Mr Ropiha’s siblings said that it would be difficult to have an ongoing relationship with their brother over the telephone if he lived in New Zealand. They also said that Mr Ropiha had developed relationships with their children (all of whom were under 18 years old) and this would be affected if he was forced to leave Australia.
Mrs Ann Parsons, Ms MacDonald's aunt, said that she had known Mr Ropiha for about five years as a result of her niece’s relationship with him. Ms MacDonald did not drive and so Mrs Parsons drove her to the various correctional centres for visits with Mr Ropiha. She had taken Ms MacDonald and Mr Ropiha’s son to Bathurst, Long Bay and Windsor Correctional Centres on about 15 to 20 occasions over the years. Mrs Parsons initially did not have a good relationship with Mr Ropiha and she said she had found it difficult to talk to him because of his substance abuse. She said she had noticed a change in him when he was released in July 2012. She had visited him on a number of occasions at Villawood and was of the view that he had changed. Mrs Parsons is hopeful that he will remain drug-free and, if so, she believes that he could make a positive contribution to his family and to the Australian community.
Mr Ropiha’s aunt, Mrs Karen Moana, said she and her sons had a close relationship with Mr Ropiha, although she had not seen him for many years and she lived in Queensland. They spoke over the telephone and in recent times their communication was more frequent. She spent approximately four hours with him on a visit at Villawood and said she had noticed a change in him. She believes his change was “sincere” and he was capable of making a positive contribution to his family and to the Australian community.
Mr Reginald Ropiha, Mr Ropiha’s father, said that when Mr Ropiha was younger he was a delinquent and a “very angry person”. This was the effect of his substance abuse. Mr Reginald Ropiha accepted that his alcoholic and abusive behaviour probably contributed to his son’s substance abuse and criminal offending. Mr Reginald Ropiha said that he had noticed a change in his son since his last period of incarceration and he was hopeful this would continue. He said that his son could have a positive impact on the family as a “leader” in the family. Mr Ropiha said that he could assist his son to obtain a job. His son had worked with him in the past and had a good work ethic but the main difficulty had been that he could not remain in the job for a long period of time because of his substance abuse. Mr Reginald Ropiha said the family would be devastated if Mr Ropiha were forced to return to New Zealand.
SUBMISSIONS OF THE PARTIES
Mr Ropiha accepted that he has a serious criminal history in Australia but he contends there is a low risk of him re-offending and therefore does not pose an unacceptable risk to the Australian community. He has reformed and has been drug free for 10 months. His criminal offending was driven by his drug use. On his account, supported by evidence from his family and his fiancée and her aunt, he is a ‘changed man’. Mr Ropiha has lived in Australia since he was five months old and has spent his life in this country. All of his ties are in Australia, he has eight children in Australia and, according to Mr Ropiha, he has a close and parental relationship with six of his children. He has no ties to New Zealand. Mr Ropiha contended these matters should be given great weight and his visa should not be cancelled.
The Minister contended that the protection of the Australian community weighed heavily in favour of cancelling Mr Ropiha’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 has committed crimes shortly after being released from prison or while on bail or parole. There is no evidence that Mr Ropiha has been rehabilitated. He is untested in the community, as are his claims that he is and will remain drug free. There is a moderate to high risk that Mr Ropiha will re-offend and the risk of harm to the Australian community is serious because a number of his crimes have involved violence or the threat of violence.
The Minister accepted that Mr Ropiha has lived in Australia since he was a baby but contended that his contribution to the Australian community over the past 17 years was largely negative and his ties to Australia, his family and his children in Australia were diminished by his repeated offending and consequent incarceration, particularly since 2004. Mr Ropiha’s ties to Australia counted in his favour, but should be given less weight than the primary consideration of the protection of the Australian community. The Minister also accepted that the interests of Mr Ropiha’s minor children, particularly those with whom he had maintained a close connection, weighed against cancellation but contended that less weight should be given to this consideration. There was evidence Mr Ropiha did not have a parental role or close connection with his children for many years while he was in prison, others fulfilled the parental role and it may be harmful for his children if he returned to drugs and reoffending. Mr Ropiha’s criminal offending over the past 17 years, the risk he may reoffend and the harm to the Australian community if he did so outweighed his ties to Australia and the best interests of his children in the circumstances of the case.
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 Australia 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 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 13 years old Mr Ropiha has had a serious drug problem and his substance abuse has led to repeated and frequent criminal offending. He has been convicted of over 70 offences since 1994 and has served over 7 years in prison. His offences have mostly been dishonesty offences of break and enter, stealing and larceny but in the commission of a number of these offences he has resisted arrest and has been convicted of resisting an officer on five occasions since 1994, with one count of assaulting an officer. Examination of the Facts Sheets from records produced by the New South Wales Police and Corrective Services reveal that the dishonesty offences lacked organisation and invariably involved smaller items, such as mobile telephones, and cash. As the relevant sentencing remarks from Magistrates and Judges noted, Mr Ropiha’s drug addiction and his need for cash appeared to motivate his repeated offending. Mr Ropiha was also convicted of offences involving violence, the most serious being the assault on his former partner in 2004, the retaliation attack for which he was sentenced to 2 years’ imprisonment in 2009 and the threatened attack on his former friend in May 2011. Mr Ropiha repeatedly breached parole and good behaviour bonds and his behaviour in prison was characterised by numerous misconduct infringements. Mr Ropiha was given many warnings and opportunities for rehabilitation but they apparently had little effect. Relevantly, he committed further criminal offences after receiving warnings from the Department in 2008 and 2010.
The Minister contended that Mr Ropiha’s offending increased in seriousness over time. The evidence does not necessarily support this. Mr Ropiha’s offending increased in frequency from 2004 but the nature of his offending has been constant. His modus operandi has involved break and enter or stealing from homes, shops and commercial premises. There were a number of “one off” incidents involving violence or the threat of violence where Mr Ropiha knew the victim or intended victim. While this does not excuse these offences, it is important to note that there is no record of Mr Ropiha being armed when he committed his dishonesty offences. With the exception of an incident involving a bus driver who Mr Ropiha thought had run into his father, Mr Ropiha has not been charged with any offence of violence or assault perpetrated on strangers.
In summary, Mr Ropiha’s criminal conduct is serious, primarily because of the frequency and cumulative effect of his repeat offending. The seriousness is exacerbated by the fact that a number of his crimes involved violence, albeit less frequent and at the lower end of the scale, and were perpetrated after he was formally warned of the consequences by the Department.
Mr Ropiha accepted that his criminal record is serious but his key contention was that his risk of re-offending is low. His addiction to drugs was the prime factor motivating his criminal offending but he is now drug free and has been so for the past 9 or 10 months. Mr Ropiha contended that this change was lasting and there was little prospect he would re-offend. He could have had access to drugs in Wellington Correctional Centre and Villawood but chose not to do so. He contended that without drugs, his prospects of rehabilitation and positively contributing to the community and his family were good.
While I accept the evidence of Mr Ropiha and his family that he is drug free at this point of time, their confidence that this will continue into the future is not supported by other independent evidence. It is common ground that Mr Ropiha’s drug addiction is directly linked to his criminal offending and, as such, this is a critical issue.
Mr Ropiha 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. He has had the support of his family for many years, yet this support and the support of his current partner and children have failed to achieve what Mr Ropiha now says is a fundamental and enduring change in his attitude. The previous threats to cancel Mr Ropiha’s visa apparently had little impact. Mr Ropiha’s resolve to be drug free and law abiding in the community has not yet been tested and it is relevant that he breached parole on several occasions when released from prison. The records show that Mr Ropiha committed numerous institutional breaches while in prison, as recently as February 2012. I also note that in April 2012 the Probation and Parole Service assessed that Mr Ropiha had a medium to high risk of re-offending.
Having regard to this evidence, I am of the view there is a real risk Mr Ropiha may 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.
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”. This principle is consistent with the comments of Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 23 ALN 81 as follows:
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia…
In this case, it is possible Mr Ropiha will return to substance abuse and therefore re-offend through further break, enter and stealing offences. These type of offences cause harm to the Australian community and even though Mr Ropiha has not physically injured any one during the commission of these offences, it is possible this may happen in the future if he is apprehended or resisted by one of the victims. It is certainly possible that Mr Ropiha may harm an officer while they are on duty if he is apprehended. Violence has not been a feature of his repeat offending but his anger management has been an issue, particularly in prison, and there have been incidents of threats of harm as retaliation for perceived wrongs. Mr Ropiha previously assaulted his former partner and while Ms MacDonald said Mr Ropiha has never been violent to her, there were incidents of domestic violence and abuse in 2004. This cannot be discounted as a future risk if Mr Ropiha resumes his substance abuse.
Given these matters, I find that the consideration of the protection of the Australian community weighs heavily in favour of cancelling the Mr Ropiha’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 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.
Mr Ropiha arrived in Australia in 1981 when he was 5 months old. Apart from several short absences, he spent his life in Australia. He was primarily educated in Australia and while he spent long periods in prison, he has lived within the Australian community for about 23 of his 31 years. He worked, but only for short periods, and reared five young children, until his separation from his previous partner in 2004. Notwithstanding his substance abuse, his former partner reportedly stated in 2002 that Mr Ropiha was “a good dad and very loving towards his children”. Of relevance is his role in caring for his younger siblings at a time of family upheaval. His siblings and mother gave evidence that his contribution at this time was positive and significant.
I accept that Mr Ropiha has strong ties and a close relationship with his family, particularly his mother, siblings, partner and several of his children. These relationships waivered for many years, particularly from 2004 when he spent much of his time in prison, but he had continual contact with his mother and Ms MacDonald and his youngest son, either through telephone contact, visits in prison or by video link. The close and more meaningful contact with his siblings and children has been a recent development, although I accept Mr Ropiha had very close ties with his siblings until he left home and had a parental role with the children from his previous relationship until 2004. Clearly Mr Ropiha’s incarceration and substance abuse affected these relationships over the years and his ability to make a positive contribution to the Australian community but I nevertheless find that this consideration weighs strongly in his favour.
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.
Two of Mr Ropiha’s children have expressed the view that they do not want Mr Ropiha to leave Australia. They want to live with him in the future and state they have regularly sought his guidance and advice, particularly since he has been in Villawood. They both stated they would be very sad if Mr Ropiha was forced to leave. Ms MacDonald said that her young son would be devastated if Mr Ropiha was forced to leave Australia. The evidence from Ms MacDonald, Mrs Parsons and Mr Ropiha, which I accept, is that Mr Ropiha has a close relationship with his youngest son and this had not just been a recent development. Ms MacDonald maintained the regular contact between their son and Mr Ropiha, even when he was in prison. I note Mr Ropiha has had a parental role with six of his children but this role has been restricted by Mr Ropiha’s long absences in prison and, in the case of the five children from his previous relationship, by his lack of access. There is no evidence that Mr Ropiha has abused his children, although his absences have had a negative effect and on one occasion his eldest son was present when Mr Ropiha committed an offence. His son does not recall this but this was likely to have had a negative impact on him at the time.
Provided Mr Ropiha remains drug free, he is likely to play a positive parental role in at least three of his children’s lives and may be able to forge a stronger relationship with his other children. There is evidence he is good with children and was a good father when he was younger. Conversely, if Mr Ropiha falls back into his old ways, the disappointment and loss the children are likely to experience may well have a negative impact, although I note I do not have the benefit of expert evidence on this issue.
While there are other persons who fulfil a parental role for each of his children, I find that Mr Ropiha’s children, particularly the three children with whom he is the closest at this time, will be adversely affected if Mr Ropiha’s visa is cancelled and he is required to leave Australia. The older children will be able to continue contact with him over the telephone, which was the nature of their relationship prior to Mr Ropiha’s release from Wellington Correctional Centre, but I accept this will not be the same as having personal contact. Even though he is young, Mr Ropiha’s youngest child has had the most frequent contact with Mr Ropiha and I accept he will be adversely affected by separation. There is also evidence that Mr Ropiha is close to his nieces and nephews, although this is a recent development, and Ms MacDonald’s other children. Ms MacDonald said in the past she would also take all of her children to visit Mr Ropiha in prison and they regularly visit him at Villawood. She said, and I accept, that they would also be adversely affected but I give this, and the effect on his nieces and nephews, less weight.
On balance I find that this consideration weighs against cancelling Mr Ropiha’s visa and note that this was conceded by the Minister.
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 three are said to be relevant to Mr Ropiha.
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 dispute that if Mr Ropiha’s visa is cancelled and he is required to leave Australia, his immediate family, which include his parents, siblings and children, will all be adversely affected. His parents are permanent residents of Australia and his siblings, de facto partner and children are Australian citizens. The evidence is that Ms MacDonald would be adversely affected if Mr Ropiha’s cancel was cancelled as she would either be separated from him or would move to New Zealand which would cause her and her younger children significant hardship. Ms MacDonald would need to find new employment and would be separated from her family, and that of Mr Ropiha’s who have provided support to her in raising her youngest child.
Having regard to these matters, I find that this consideration weighs against the cancellation of Mr Ropiha’s visa.
The Minister contended there would be a negative impact on Australian business interests if Mr Ropiha’s visa was not cancelled given the possibility of Mr Ropiha re-offending and his history of repeated dishonesty offences, some against Australian businesses. I accept that there is a possibility Mr Ropiha will re-offend and this may involve offences against Australian businesses. This would weigh in favour of cancellation, although I note that this was not the primary focus of Mr Ropiha’s previous criminal conduct and this consideration would carry less weight than the effect of cancellation on his immediate family.
The Minister contended that there were no identifiable victims who would be prejudiced by the decision not to cancel and, as such, this consideration was not relevant. In contrast, there were no real impediments to Mr Ropiha 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 Ropiha is still a young man and in good health. While it was accepted that Mr Ropiha would not have any social supports in New Zealand, having no significant ties or family in that country, the Minister contended that this consideration did not weigh against cancellation. In my view the lack of any social supports in New Zealand will be a significant impediment in the circumstances of this case having regard to the fact that Mr Ropiha’s immediate family and most of his extended family live in Australia. He has no family, friends or other ties in New Zealand and this will make it very difficult for Mr Ropiha to establish a new life in New Zealand, unless Ms MacDonald travels with him. This consideration weighs against cancellation.
CONCLUSION
Weighing all the relevant considerations in this matter I consider that the decision of the Minister should be set aside and substituted with the decision that Mr Ropiha’s visa should not be cancelled but note that the decision is finely balanced.
The fact that Mr Ropiha was so young when he arrived in Australia, has lived in Australia for most of his life and has established strong personal and familial ties in Australia is compelling. The likely adverse affect on his children is also a material consideration that counts against cancellation. In contrast, the seriousness of the offences previously committed, the fact they were repeated and frequent despite Department warnings and the fact there is a real and significant risk of recidivism, are strongly countervailing considerations. In balancing these competing considerations, I must have regard to the principles set out in cl 6.3 of Direction no. 55.
As noted in cl 6.3, remaining in Australia is a privilege conferred on non-citizens in the expectation they are, have been and will be law abiding. Mr Ropiha has abused this privilege and has spent a significant part of the past 17 years either committing criminal offences or in custody. His ability to make a positive contribution to the Australian community has been restricted by his criminal offending and substance abuse. He has had little opportunity to work in gainful employment in Australia, although there is evidence Mr Ropiha has contributed positively in his role as a father for significant periods despite his drug taking. Unfortunately this contribution has been overshadowed by his repeated offending and consequential imprisonment from 2004. While his family and partner earnestly attest to the change in Mr Ropiha’s attitude, his positive influence and potential, all concede this has been a recent development.
The difficult task in this case is therefore to balance protection of the Australian community and the risk of harm if Mr Ropiha reoffends against Mr Ropiha’s ties to the Australian community, the best interests of his minor children in Australia and the effect his removal is likely to have on his family, who are either Australian citizens or permanent residents.
The Minister referred to the recent decision of Deputy President Hack in Re Wipa and Minister for Immigration and Citizenship [2012] AATA 125 in which the Tribunal affirmed the decision of the Minister to cancel Mr Wipa’s visa. This case was said to be similar to Mr Ropiha’s case.
Mr Wipa arrived in Australia when he was four years old, lived most of his life in Australia, had a de facto relationship for several years and had two young children who were born in Australia. Mr Wipa had a history of criminal offending commencing when he was 13 years old. Like Mr Ropiha, Mr Wipa had a history of substance abuse and a difficult upbringing but was “reformed” by the time of the hearing.
Deputy President Hack found that Mr Wipa’s offences were “characterised by a high level of personal violence directed to persons who were essentially strangers to him”. Mr Wipa had ongoing anger management issues which were displayed during the hearing and Deputy President Hack express concern about whether these issues would negatively impact on his children in the future. While Mr Wipa had spent his formative years in Australia, Deputy President Hack found he had not become part of the Australian community and had no apparent links to the wider community or his family.
Mr Ropiha’s case can be distinguished from the facts of this case in a number of important respects. Mr Ropiha crimes were generally not violent in nature and in the cases where he was convicted of assault and affray, his crimes were directed to people he knew, not strangers, although there was one incident of assault on an officer in execution of duty. There is no evidence that Mr Ropiha has directed his anger at his children and the preponderance of evidence is to the effect that Mr Ropiha was a good father for significant periods. Mr Ropiha has spent many years in custody but has also established meaningful relationships with his family, children and partner.
According to the principles in cl 6.3, there is a relationship between the risk of harm and the level of tolerance that the Australian community may afford non-citizens. Mr Ropiha’s criminal record is serious but does not involve conduct that is so serious that any risk of similar conduct in the future would be unacceptable. His offences did not involve vulnerable members of the community and the majority of his crimes did not involve violence and were at the lower end of the scale of seriousness. His crimes were opportunistic, unplanned and largely unsuccessful. Most sentences were 12 months or less. While the risk of harm if Mr Ropiha re-offends is serious and this factor should be given considerable weight, in my view those considerations that weigh in his favour combine to tip the balance against cancellation.
Mr Ropiha has become a part of the Australian community and while his level of engagement and connection has been limited by his substance abuse, criminal activity and his time in custody, there is evidence he has built meaningful relationships with his family, children and partner, who are either Australian citizens or permanent residents, over the past 30 years. There is little evidence that Mr Ropiha has ties with the wider community or that he has positively contributed to the wider community or indeed his family for much of the past 17 years. However, he has made some contribution and, importantly, there is evidence that cancellation would adversely affect his children. Together, these factors are significant enough to militate against cancellation to such an extent that the Australian community would be likely to afford a higher level of tolerance to the possibility of Mr Ropiha re-offending and the resulting risk of harm.
The case is finely balanced because much depends on Mr Ropiha’s abstinence from substance abuse in the future. As noted in the cl 6.3 principles, the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that the non-citizen is law abiding and, relevantly to Mr Ropiha’s case, will remain so. If Mr Ropiha continues with this abuse and repeats his criminal offending in the same manner as in the past 17 years, his contribution to the Australian community will be further diminished and the community will have less tolerance for his criminal offending. Given the previous warnings and the decision of the Minister to cancel Mr Ropiha’s visa on this occasion, if Mr Ropiha re-offends, it is likely the relevant considerations under Direction no.55 will weigh in favour of cancellation. However, at this stage, I find they are balanced in his favour.
I therefore conclude that the correct and preferable decision is that the decision should be set aside and a decision substituted that the Applicant’s visa not be cancelled.
I certify that the preceding 86 (eighty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern .......[sgd].................................................................
Associate
Dated 8 October 2012
Dates of hearing 19 and 20 September 2012 Applicant In person Solicitor for the Respondent Mr S Kikkert, Department of Immigration and Citizenship
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