Kasupene and Minister for Immigration and Citizenship

[2008] AATA 766

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 766

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2730

GENERAL ADMINISTRATIVE DIVISION        )

Re             Dylan Murphy KASUPENE

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date29 August 2008

PlaceSydney

DecisionThe decision under review is affirmed.

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – substantial criminal record – character test – applicant does not pass the character test – discretion – community protection and expectations considered – best interests of the child considered – other considerations – community protection and expectations outweigh the best interests of the children in this case – decision under review is affirmed.

…

RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Green v Minister for Immigration and Citizenship [2008] FCA 125

Re Inamata and Minister for Immigration and Citizenship [2008] AATA 695

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Al-Kateb v Godwin (2004) 219 CLR 562

Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Re Aporo and Minister for Immigration and Citizenship [2008] FCA 102

…

OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

29 August 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Dylan Murphy Kasupene was born in June 1980 in New Zealand and is a citizen of that country.  He is unmarried and not currently in any de facto relationship.

2.      He first entered Australia on 14 October 1992 for a short visit, departing again after less than two weeks.  He next arrived in Australia on 3 August 2000 at the age of 20, at which time he was granted a class TY subclass 444 special category visa.

3. Between 2003 and 2005, the applicant was considered for visa cancellation under s 501 of the Migration Act 1958 (Cth) (the Act). On 1 April 2005, a delegate of the minister decided not to cancel the applicant's visa but instead issued a warning letter (G pp39-40).

4.      The applicant was sent a further notice of intention to consider cancellation dated 28 February 2008 (G pp45-50), and his visa was cancelled by a delegate of the minister on 5 June 2008.  On 19 June 2008, the applicant applied to this tribunal for review of that decision.

5.      The applicant has a significant criminal history in Australia consisting of a number of offences including:

Date	Australian Convictions	Sentence
31 July 2002	Break and enter	12 months imprisonment
22 August 2002	Larceny	6 months imprisonment
3 September 2002	Enter without permission & steal	12 months imprisonment
18 September 2002	Shoplifting	3 months imprisonment
26 September 2002	Shoplifting	6 months imprisonment
21 November 2002	Breach of bail	Bail order made
25 November 2002	Stealing	12 months imprisonment
7 February 2003	Common assault and stealing	22 months imprisonment
3 October 2003	Break and enter	18 months imprisonment
12 August 2004	Public nuisance	$300 Fine
20 May 2005	Attempt to enter with intent to commit indictable offence	Probation 15 months
15 November 2005	Public nuisance	$250 fine
15 February 2006	Breach of probation order	$250 Fine
26 September 2006	Failure to appear	$100
15 November 2006	Breach of probation order	$100
11 April 2007	Enter premises and commit indictable offence, receive stolen property, fraud	12 months imprisonment
28 April 2007	Enter premises and commit indictable offence	8 months imprisonment or $2300 restitution
24 July 2007	Unlawful use of motor vehicle, break and enter, stealing, failure to appear	30 months imprisonment
29 August 2007	Breach of correction order	12 months imprisonment

6.      The applicant also had a significant criminal history in New Zealand before arriving in Australia including:

Date	New Zealand Convictions	Sentence
18 August 1997	car theft	100 hours community service
19 March 1998	shoplifting	100 hours community service
07 September 1998	Car theft, burglary, shoplifting and behaving threateningly with a weapon	Non residential detention 4 months and supervision by community corrections 9 months
16 November 1998	Shoplifting and theft	3 months detention
9 August 1999	Shoplifting and burglary	18 months imprisonment
30 September 1999	intent to facilitate	2 months imprisonment
02 November 1999	Theft and Shoplifting	3 months imprisonment
21 March 2000	receiving stolen property	$300 Fine

7. At the hearing, the applicant appeared in person while Mr Greg Johnson of DLA Phillips Fox appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (the G documents), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant, and in support, his father Mr Morgan Kasupene together with the applicant’s younger siblings, twins Phillip and Maya Gaudin, all gave oral evidence in person.

Issues

8.      The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,

(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

9. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7); or

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

10. “Substantial criminal record “ is defined in s 501(7)

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

…

11.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The applicant’s evidence

13.     In his written statement which he adopted at the hearing (Exhibit A2), the applicant accepted full responsibility, and expressed remorse, for his actions, which he said were a reflection of an addictive, selfish drug dependency that he had taken steps to overcome.

14.     He had educated himself while in custody by participating in a number of programs, including a construction safety course and a senior first aid qualification.  His intention was to work in the construction industry immediately on release and ultimately seek employment in the mining industry.

15.     He had served prison sentences away from his family and did not want that to happen again.  He feels he could be a positive influence on his younger brother and sister, to whom he is very close and who are Australian citizens.  He is also very close to his father, who raised him as a single parent from a very young age.

16.     His aunts (his father’s sisters) as well as their families, who are also Australian citizens, could offer him family support and positive choices on his release.  He had nothing and no-one in New Zealand to return to and believed he would find it hard to cope without his family ties and his family support in New Zealand.  His family live in Brisbane and he hoped that he could have the chance to be with them and to prove that he had definitely turned his life around for the better.

17.     In oral evidence he said he had attended primary and secondary school in New Zealand, where he had performed reasonably well and had participated in sport.  He was, however, sent to an alternative school because of frequent absences.  He then undertook an initial carpentry course at the age of 16, which he completed, and then enrolled in a more advanced two-year course, which he did not finish because he became involved in the drug scene because of family problems at home.

18.     He then began to commit criminal offences because of his drug habit, stealing to support it.  He was also influenced by the group with which he associated.  They always had a great deal of money, which they obtained through crime.  Sometimes he committed offences on his own, and sometimes with others.

19.     He agreed that he had offended steadily until he left New Zealand and followed his family to Sydney, where he lived with his father.  He was 20 at the time of his arrival.  He acknowledged that he had been asked on arrival to declare any criminal convictions on the incoming passenger card and that he had “ticked a box”.

20.     For the first eight months, he worked with his father on railway work, which he enjoyed.  After that task was completed, he undertook other jobs.  At that time he had ceased using drugs, because he was separated from the New Zealand drug scene.

21.     He remained crime-free for two years, but returned to drug-taking in 2002 when he met an old friend from New Zealand at Canterbury, who supplied him with heroin, with the result that he was addicted for the whole of the 2002-2003 period.

22.     In 2004, he had moved to Queensland with his father, who had gone to live with the applicant's aunt there.  In Queensland, he served the probation imposed in February 2004 when a prison sentence had been suspended because the sentencing judge thought he had good prospects for drug rehabilitation.  He had decided to improve himself, but took no steps to do so.  He did, however, obtain employment in labouring positions and as a machine operator, besides establishing new social networks in Brisbane.

23.     He returned to drugs, however, because of family problems.  He actively sought out “ice” (crystal methylamphetamine), and his use of it affected his ability to remain in employment.  He did not, however, think that drugs were a factor in his 2005-2006 offences, when he had more of an alcohol problem.  His motive had been to obtain more money, because although he was working he spent a great deal of money on alcohol.

24.     The intensive correction order imposed on 11 April 2007 included community service and reporting twice a week.  He knew that was a good result for him, but returned to using ice between one and three months after that, as he felt under pressure after losing a job.  The series of offences he committed after the intensive correction order was committed to fund his drug habit.

25.     The first time the possibility of visa cancellation had been brought to his attention was when a prison counsellor told him about it in 2003 and he was given certain papers similar to those he received in 2007.  He telephoned his family and arranged for them to write letters, in addition to sending a letter of his own.  He remembered the letter and fax referred to in the department’s letter of 1 April 2005 (G p39), although he did not receive the letter of 1 April itself.  He knew he faced the risk of deportation if he re-offended, then added that he “sort of” understood but did not fully grasp that it was imperative that he stay out of trouble.

26.     While serving his most recent prison sentence in Brisbane, he completed a number of courses, including the Advance2Work program to help him to find suitable employment.  His ambition is to work in the mines, and he has the necessary qualifications for that.

27.     In Brisbane, his father used to visit him once a month and they would speak on the telephone about twice a week.  He has close relations with his brother and sister.  He acknowledged that his conduct could have constituted a negative role model for them.

28.     Asked again about whether he had failed to declare his New Zealand convictions on entry, he explained at first that he had passed through customs and immigration with his cousin hurriedly, and it was possible that his cousin had ticked the box on the incoming passenger card for him.  When then reminded that he had previously said that he had ticked the box himself, he agreed that he had but said he could not now recall which one he had ticked, although he knew at the time that he should declare his convictions.  He then added that he did not know if his cousin had completed the form for him.

Applicant’s supporting evidence

29.     At the hearing the applicant's father, Mr Morgan Kasupene, adopted his written statement of 1 August 2008 (Exhibit A3) in which he said that he is the applicant’s only immediate family here in Australia and that the applicant’s siblings also live with him.  He has no other family in New Zealand to return to if his visa is cancelled.

30.     He was concerned that the applicant might become involved in drug-taking again if he were to return to New Zealand.  He believes that with the right motivation he could be a positive and constructive member of the Australian community.

31.     Mr Kasupene believed a work accident to his foot he had himself suffered had exerted an unsettling effect and had contributed to the applicant’s behaviour, which had been totally out of character in relation to the way he had been taught by his mother and himself.  His desire is to go out into the community and work to make amends for his wrongdoing, for which he is fully remorseful.

32.     In cross-examination, Mr Kasupene said he has three sisters in New Zealand, all living in Auckland, and is in contact with them by telephone.  His mother is also in Auckland, and he is in regular contact with her also.

33.     The applicant’s younger brother Phillip Gaudin wrote (Exhibit A4) that he did not really know how the applicant had found himself in his present position, but he did know that he was a big help to the family financially, and also in helping their father to do tasks that his foot injury prevented him from undertaking.  That included helping Phillip in his rugby league training and explaining the finer points of that sport to him.

34.     In oral evidence Mr Gaudin said he has a good relationship with the applicant.  They speak on the telephone every couple of weeks and he visits him from time to time.  He views the applicant as a role model but acknowledged that any relapse by him into re-offending would have a negative effect.  He was not, however, influenced by his brother’s drug problem because all his friends used drugs in any case.

35.     Mr Gaudin’s twin sister Maya Gaudin, aged 16, stated (Exhibit A5) that it would be preferable for the applicant to remain in Australia because her father was no longer able to work because he was disabled by his foot injury.  The applicant also has no family in New Zealand to whom he could return.

36.     She believes that if he is allowed to remain in Australia he could make amends for what he has done and find useful employment.

37.     While she was living in New Zealand, she had lived with her mother while attending high school.  She now lives in Brisbane with her father, her aunt and her twin brother, and the household is a happy one.  When she first arrived in Australia in 2007, the applicant was in jail but she kept in touch with him by telephone and visits.  While she had been in New Zealand she had also kept in contact with the applicant, but when she came to Brisbane in 2007 she had not seen him for quite a few years.

38.     Her relationship with the applicant was a good one, he had looked after her when he was in New Zealand.  His criminal activities and drug-taking had no impact on her.  She would be disappointed if he were to relapse, but would nevertheless continue to care for him.

39.     The applicant tendered three letters of support (Exhibit A6), including one from Mr Daniel Boon JP, of Eatons Hill, Queensland, who wrote that he had known the applicant for about five years through his father.  His parents had separated when he was aged about four, and he did not adjust to the single parent family structure.  The family migrated to Australia in 2000.

40.     He described the applicant’s nature as quiet and respectful, and perhaps a little withdrawn, and said that violence and aggression were not in his character.  Although he is aged 28, his maturity and social skills were below those of many people of his age in Australia.  For that reason, he was influenced by the anti-social group with which he inadvertently became involved.  If allowed to re-enter normal life in Australia he would eventually contribute in a positive way as has his father and aunt.

41.     Mr Dwayne Kasey (part Exhibit A6) had known the applicant since his time at Weston Milling Ltd between April 2005 and May 2007.  During that period he was a keen and willing worker who was trustworthy and honest.  He left of his own accord and Mr Kasey would recommend him to future employers.

42.     Mr Edward Key (part Exhibit A6) had known the applicant since he married the applicant’s aunt in February 1990.  He had come to know the applicant as trustworthy and a hard worker.

43.     Medical certificates from Dr Terry Anderson summarising consultations on 8 and 13 August 2008 (Exhibit A7) recorded that the applicant reported anxiety and greater insight into the correlation between his offending and his previous drug use.  He was polite, co-operative and receptive to the idea of further counselling.

Applicant’s submissions

44.     The applicant apologised for the harm his behaviour had caused the people of Australia.  He had not been in this situation before, as he had not fully understood the risk of deportation.  He had learned from his experiences.  He had been away from his family for three years, which was long enough, and he had hardly seen them.  He did not really know his aunts in New Zealand.

45.     He could be a productive member of society, although he had so far wasted a third of his life.  If given the chance he would do the right thing.  He had been free of drugs since his incarceration, although there had been opportunities to resume.

46.     He had fallen because of his drug problem.  Now however, he wanted to remain in Australia and return to work, rather than spending time in jail wasting the taxpayer’s money.  He believed he had definitely changed for the better.

Application of the Law and Findings of Fact

47. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his serious criminal record.

48. In this case the applicant neither concedes nor denies that he does not pass the character test because of his “substantial criminal record” within s 501(7). It is apparent that he does not, having been sentenced to eight terms of 12 months or more of imprisonment on eight separate occasions, together with four shorter sentences.

49. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

50.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

51.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (f), crimes of violence against persons.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

52.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

53.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons, and in paragraph 2.6(l) serious theft offences, are to be treated as very serious.  In this case, the applicant has been convicted on eight separate occasions of offences of dishonesty resulting in sentences of imprisonment of or exceeding 12 months.  On 7 February 2003 he was also convicted of common assault, for which he received six months.  His longest sentence, 30 months' imprisonment, was imposed on 24 July 2007.  He also has received fines for two separate instances of public nuisance and 12 months' imprisonment for breach of a correction order, on 29 August 2007.

54.     The sentences indicate that most of his stealing offences were regarded by the courts as serious and therefore should be taken to qualify as “serious theft” for the purposes of paragraph 2.6(l).  The conviction for assault, resulting in a six month sentence, must also have been quite significant.

55.     The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)).  They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). Mr Johnson referred to Re Inamata and Minister for Immigration and Citizenship [2008] AATA 695 at para 91 in which I quoted some remarks of Viney J when sentencing Mr Inamata on 5 December 1994:

…  It has been said on authority that the fact that people commit offences when they are affected by drugs is not of itself a mitigating factor and that must be taken into account.  Even so, it is fair to say that a person who commits offences when they are thus affected can be treated differently from criminals who simply use these sorts of crimes to maintain a lifestyle and are not motivated by such an outside agency (G p142).

…

56.     The applicant also indicated that another motivating factor was his desire to emulate his group of friends, who always had large amounts of money obtained from criminal activity.

57.     The applicant’s record is marked by a steady and consistent flow of offences beginning in August 1997 in New Zealand when he was 17, resuming in Australia in 2000 when he had been in this country for two years and continuing until May 2007 at fairly regular intervals.  Many of the offences are serious.  In my view, the applicant’s record must be viewed as very serious.

58.     The next issue for the tribunal to consider is the risk of recidivism.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). The applicant has committed numerous offences over a 10-year period. He has not been deterred by repeated sentences of imprisonment or by bonds or lesser penalties. Notably, Magistrate Bradford-Morgan on 24 July 2007 observed that a prison sentence had been suspended on 11 April 2007 on the basis of an intensive correction order, but that he had begun re-offending again on 23 May, a little over a month later (G p128).

59.     When suspending the sentence and imposing the intensive correction order, Berman J had noted that he had a satisfactory work record and had expressed considerable remorse for his actions.  He had gained a great deal of insight into the consequences of drug abuse and intended on his release to live with his father in Queensland.  His father was determined to do everything he could to ensure that there was no repetition (G p113).

60.     His Honour placed great weight on this passage from the pre-sentence report:

…

Mr Kasupene appears to have learnt a salutary lesson from this experience.  There are good indications that he has made significant gains in terms of maturity and insight since he came into custody.  He appears to be focused on the future and possesses the personal resources to achieve his goals.  The role of the extended family unit will be critical to that process as will his motivation to access the assistance available to him.

…

61.     His Honour stressed that the only person who could control whether he returned to jail to serve his sentence was the applicant himself (G p115).  Yet a few weeks later the pattern of re-offending resumed.

62.     Nor has he been deterred by earlier consideration as to whether he should be deported.  It is clear that he did not receive the warning letter of 1 April 2005 (G pp39-40), which was returned unclaimed, but it is equally true that he received the earlier documents relating to consideration of possible deportation in 2003.  He corresponded with the department about the matter and arranged for his family to do likewise.  At the hearing he claimed not to have fully understood the risk of deportation or visa cancellation, but his active involvement in the process and his awareness that it was basically similar to the visa cancellation procedure instituted in 2007, indicate that he was aware of the general nature of the situation he was facing.

63.     His pattern of offending has been regular and consistent and shows no signs of improvement.  Ms Jennifer Runge, the senior sentence management adviser at Woodford Correctional Centre, reported on 26 February 2008 that:

…

Prisoner Kasupene was identified as having poor problem-solving skills, pattern of generalised problems, antisocial or pro-criminal attitudes and a poor attitude towards supervision/intervention.  These aspects were considered of concern and criminal/antisocial attitudes have been identified as a criminogenic need.  …

…

Prisoner Kasupene has been assessed as a Medium risk to the community ….

…

64.     On the other hand, he “displays acceptable attitude to work” (G pp132-133).

65.     There is some evidence of rehabilitation.  He has been free of drugs since his latest incarceration and has undertaken a number of useful courses.  He has expressed remorse and the intention to reform (see also Exhibit A7) but, as was noted above, he has done so before and still re-offended.  He attributes a good deal of his wrongdoing to family problems and mixing with the wrong people, but those are situations that could recur and have recurred in the past.  He has previously ceased using drugs several times before but has resumed, for example, when he actively sought “ice” in Brisbane.

66.     His evidence before the tribunal appeared to be less than entirely frank.  He was evasive and inconsistent about whether he had declared his New Zealand convictions on entry, his family composition in New Zealand and his understanding of the risk of deportation that was raised with him in 2003.

67.     The most recent prison report, dated 26 February 2008, notes that he is assessed as presenting a medium risk to the community, and that assessment is consistent with the other evidence before the tribunal.

68.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  Its incorporation as a factor in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

69.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

70.     In Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078, Deputy President Block referred to evidence showing a high crime rate among New Zealand citizens living in Sydney and added that “Because a community group is involved, it has been thought to be useful that that group appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by a return to New Zealand” (at para 63).

71.     Mr Johnson submitted that as the evidence showed the applicant had New Zealand friends who had done similar things, visa cancellation could send a deterrent message through such groups.

72.     The applicant was unrepresented and made no submissions on specific matters such as deterrence.  Nevertheless, while deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it cannot be disregarded as a factor and indeed Direction No 21 so requires.

73.     I conclude that the primary consideration of community protection favours affirming the decision in this case.

Expectations of the Australian Community

74.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

75.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).

76.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).

77.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

78.     The community would have some regard to the applicant's family ties in Australia and to the efforts he has made in jail to undertake courses to assist with his rehabilitation.  Yet despite similar efforts, the applicant has in the past re-offended following periods of incarceration.

79.     In my view, therefore, the community would expect that the visa of a person with such a serious and sustained criminal record over a 10-year period, is assessed at being medium risk of re-offending who shows little evidence of rehabilitation and who has previously been made aware of the risk of deportation should be cancelled.

The Best Interests of the Child

80.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

81.     The applicant has no children.  He does have a younger brother and sister, Phillip and Maya, twins aged 16, who live in Australia.  Phillip arrived from New Zealand in 2005 and Maya in 2007.  They live with their father and their aunt in Brisbane.

82.     The applicant did not submit that their interests would be harmed if his visa were cancelled, but consistently with Re Aporo and Minister for Immigration and Citizenship [2008] FCA 102 at paras 29-30, it is necessary to consider their position.

83.     Phillip and Maya appear to be on good terms with the applicant, but they have had little contact with him in recent years because of the applicant’s incarcerations and because they were living in New Zealand until 2005 and 2007 respectively.  The relationship does not appear to be a close one, and paragraph 2.16(b) of Direction No 21 declares that the hypothetical prospect for developing a better or stronger relationship in the future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct.

84.     Phillip and Maya would prefer the applicant to remain in Australia and would no doubt be disappointed by his removal, although they would still be able to maintain telephone contact in the same way as they have over recent years.  They are living with their father and their aunt (their mother’s whereabouts are unknown) in a supportive and happy environment.  On the basis of their personal preferences, it would be possible to say that their best interests weight against visa cancellation in this case, but they do not weigh as heavily as might otherwise be the case.

Other considerations

85.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

86.     The applicant has no business or similar connections with Australia that would be jeopardised by visa cancellation.  On the other hand, his father, siblings and a number of aunts and uncles live in Australia and they would suffer some emotional hardship if he were removed to New Zealand.  Although he claimed to have no family in New Zealand, his grandmother and three aunts live in Auckland and his father is in regular contact with them.

87.     He has lived in Australia for only eight years, having not arrived here until he was 20 years of age.  His education and formative years were in New Zealand.  He would face no cultural or language problems in reintegrating into New Zealand society.

88.     There is some evidence of rehabilitation.  He has undertaken useful courses, is no longer using drugs and has a good attitude to work (eg, Exhibit A6).  His progress towards rehabilitation has not, however, been put to the test in the wider community because of the time he has spent in custody.  He does not have a great deal of drug-free time in the community.  He has given firm assurances of reform and rehabilitation in the past but has relapsed.  Notably, he re-offended within weeks of receiving a suspended sentence conditioned on an intensive correction order in 2004.  He went on to accumulate numerous convictions after that time.

89.     Importantly, he has previously been warned about the risk of deportation in the event of re-offending.  While he did not receive the actual final letter of warning, he received all the preceding documentary material and discussed the matter with a prison counsellor.  He was actively involved with communicating with the department, and in arranging for his family to do so, in 2003 and 2004.  Yet he resumed his established pattern of re-offending.

90.     In my view, the primary considerations of community protection and expectations outweigh the primary consideration of the best interests of the children and the other considerations in this case.

91.     The decision under review is affirmed.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   …………………[sgd]……………………………..

Renee Wallace, Associate

Date/s of Hearing:  20 August 2008
Date of Decision:  29 August 2008
Solicitor for the Applicant:                  Self-represented
Solicitor for the Respondent:             Mr G Johnson, DLA Phillips Fox