Lui and Minister for Immigration and Citizenship

[2008] AATA 531

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL                No.  2008/1623

GENERAL ADMINISTRATIVE DIVISION
Re		DENNIE MIKA LUI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:25 June 2008

Place:Melbourne

Decision: The Tribunal sets aside the decision under review and the visa of the applicant is not cancelled.

(sgd) G.D. Friedman

Senior Member

MIGRATION – Special Category temporary visa – cancellation – criminal record – character test – exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

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

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

REASONS FOR DECISION

25 June 2008   G.D. Friedman, Senior Member

1.        Dennie Mika Lui is a New Zealand citizen who has been in Australia since 1993.  His Class TY subclass 444 (Special Category) Temporary visa was cancelled because a delegate of the respondent was not satisfied that Mr Lui passes the character test due to his substantial criminal record in Australia.  The delegate decided to exercise the discretion to cancel the visa.

ISSUES

2.        The issues before the Tribunal are:

·What is the legislative background?

·Does Mr Lui pass the character test? If not:

·Should the discretion to cancel the visa be exercised?

WHAT IS THE LEGISLATIVE BACKGROUND?

3. Under s 501(2) of the Migration Act 1958 the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(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 in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides:

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

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

4. Under s 499(1) of the Act the Minister may give 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 (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).

5. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction – Visa Refusal and Cancellation under section 501 – No. 21 (Direction 21).  The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

6.        Paragraph 2.2 of Direction 21 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.

Paragraph 2.3 of Direction 21 sets out the primary considerations:

2.3      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 of Direction 21 explains:

2.4      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…

7.        Examples of the matters that the Government views as serious offences are set out in paragraph 2.6 of Direction 21.  These include drug-related crime (2.6(a)); armed robbery (2.6(e)); assault or any other form of violence against persons (2.6(f)); and any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community (2.6(n)).

8.        Paragraph 2.8 of Direction 21 states that when exercising discretion, decision-makers must take into account any relevant factors provided by the non‑citizen as mitigating factors.

9.        Paragraphs 2.10 and 2.11 of Direction 21 refer the decision‑maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – that is, the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

10.      Paragraph 2.17 of Direction 21 states that when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally 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; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

DOES MR LUI PASS THE CHARACTER TEST?

11.      Mr Lui was born in New Zealand in 1974 and arrived in Australia on 11 July 1993.  He has lived in Australia since then.

12.      On 25 June 2004 in the District Court of New South Wales he was convicted of robbery in company and was sentenced to three years’ imprisonment with a minimum of two years.  On 23 January 2006 he was released on parole.  On 29 January 2007 the Department of Immigration and Citizenship was informed that Mr Lui’s parole had been revoked and he had been returned to gaol.  On 22 June 2007 he was released on completion of the sentence.  In addition Mr Lui has been convicted of several other offences of stealing and receiving stolen goods, for which he received financial penalties.  On 12 April 1994 he was convicted of assault with intent to rob whilst armed, and sentence was deferred for 3 years upon him entering a $3000 good behaviour bond and 3 years supervision by the New South Wales Probation Service.  On 28 May 2003 he was convicted of aggravated robbery and was sentenced to two years’ imprisonment, suspended upon him entering a bond. 

13. In view of the nature of the offences and the sentences imposed, the Tribunal finds that Mr Lui has a substantial criminal record as defined in s 501(7) of the Act and that he does not pass the character test under s 501(6)(a) of the Act.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

14.      In a written statement dated 16 June 2008 (Exhibit A2) Mr Lui told the Tribunal that his parents, a brother and two sisters live in New Zealand, and two brothers and a sister live in Australia.  He said that he has a close relationship with his Melbourne-based sister and brother, and both have supported him throughout his gaol term and his time in immigration detention.

15.      Mr Lui stated that he had a positive childhood in a close and loving family, and came to Australia at the age of 19 with his brother with whom he lived in Melbourne.  He explained that after leaving his brother’s residence he moved to Sydney, was introduced to drugs and alcohol as a young man, and started getting into trouble.  This led to a number of summary convictions for theft, robbery, property offences and assault, and he served five months’ imprisonment in 1994.  He said that after his release he lived with a friend and maintained stable employment as a barman and labourer until 2003.  In 2003 he again resumed his drug and alcohol habits and committed the offence of robbery in company, for which he received a gaol sentence in the District Court of New South Wales on 25 June 2004 of three years with a minimum of two years.

16.      In relation to the circumstances of the offence, Mr Lui told the Tribunal that he and a friend were under the influence of marijuana and alcohol and decided to rob a man waiting at a railway station.  Mr Lui said that the victim was assaulted and Mr Lui stole his wallet and a packet of cigarettes.  Mr Lui stated that he then walked away but his co-offender continued to assault the victim.  He said that he felt remorseful after the incident and pleaded guilty at the earliest opportunity.  He emphasised that he is of low intelligence and has always been influenced easily by other people.  Mr Lui said that he accepted full responsibility for his actions, and in gaol he completed drug and counselling courses, anger management and educational programs.  He said that he remained drug-free in gaol, attended church services and received visits from family members, including his parents who came from New Zealand on one occasion.

17.      Mr Lui stated that after his release on 23 January 2006 on parole he did not commit further offences, but admitted that he failed to comply with the terms of his parole by not attending his parole officer.  As a consequence several months later he was returned to custody to serve the remainder of his sentence, and was released on 22 June 2007.  He said that he resumed living with a friend but in July 2007 he decided to return to Melbourne, where he lived with his brother and family until 11 April 2008, when his visa was cancelled and he was taken into immigration detention.

18.      Mr Lui said that after moving to Melbourne he is a changed person.  He said that he now has stable accommodation with his brother and hopes to gain full-time employment assembling engine components as he has completed a successful trial in a company where his sister-in-law works.  He said that since January 2008 he has attended the New Life Assembly of God church where he has been accepted and has participated in activities such as bible classes, counselling sessions and helping young people to avoid drugs and alcohol.  He stated that he has not taken drugs or consumed alcohol while living in Melbourne.  Mr Lui stated that he is remorseful for his past mistakes and has paid the price.  He assured the Tribunal that he is moving forward with his life and is doing things that he should have done years ago.  He referred to his family support and his strong relationship with his siblings and nieces, and said that his strong ties with the church have assisted with his rehabilitation and reduced the likelihood of re-offending.  He said that if he is required to return to New Zealand after an absence of nearly 15 years he would have to start a new life without the support systems which are beginning to have a positive impact on his life.

19.      Under cross-examination Mr Lui agreed that while in gaol he told an officer of the then Department of Immigration and Multicultural Affairs on 2 April 2007 that he would be happy to return to New Zealand at the completion of his sentence because his family had returned to New Zealand, he had lost contact with family members and he had not been visited in gaol since 2004.  He also agreed that on previous occasions he had been given opportunities by courts to remain drug and alcohol free, without success, but he said that on those occasions he did not have the level of family and church support that he now enjoys in Melbourne.

20.      In a written statement dated 3 June 2008 (Exhibit A3) Ngaupokoina Isamaela, Senior Pastor, New Life Assembly of God, stated that he has been a church minister for 19 years and has known Mr Lui since January 2008.  He said that Mr Lui commenced attending his church in February 2008 and has responded positively to the encouragement, love and support offered by church members.  Pastor Isamaela said that Mr Lui has attended bible study fellowship sessions and has shared experiences with others as an example of the problems that may arise from unlawful and antisocial behaviour.  Pastor Isamaela told the Tribunal that before Mr Lui was placed in immigration detention in April 2008 he had been living with Mr Lui’s brother and family, who have been impressed by the transformation in his attitude and demeanour since joining the church.  Pastor Isamaela acknowledged that Mr Lui had made some poor decisions in the past, but emphasised that if he was permitted to remain in Australia the church would be willing to resume its support and assist him to become a good citizen who has the potential to encourage others who have had similar problems.

21.      In oral evidence Pastor Isamaela said that he has been impressed by the efforts made by Mr Lui in the short time before being placed in immigration detention.  He stated that he has not visited Mr Lui, but has maintained contact by telephone and through visits by family and other church members.  Under cross-examination he said that Mr Lui’s problems in the past have arisen partly because he has been released into the community in Sydney without adequate family and church support.  This would not occur in Melbourne in the current environment, and the church is keen to continue to assist his rehabilitation.  Pastor Isamaela said that his church does not operate in New Zealand, although there are a number of Christian denominations which Mr Lui would be able to approach for support.

22. In considering whether to exercise its discretion under s 501(2) to cancel Mr Lui’s visa the Tribunal has had regard to Direction 21.

23.      In respect of the first primary consideration concerning protection of the Australian community, there is no doubt that Mr Lui has an extensive criminal history dating from 1993.  His convictions range from minor stealing to more serious matters such as assault, aggravated robbery and robbery in company.  He has spent more than three years in prison.  Some of the offences come within the category of very serious offences as set out in Paragraph 2.6 of the Direction.  The sentences are indicative of the seriousness of Mr Lui’s conduct.

24.      The Tribunal takes into account the evidence from Pastor Isamaela that his church is willing continue to offer support to Mr Lui.  On the question of general deterrence (paragraph 2.11 of the Direction) the Tribunal finds that cancellation of Mr Lui’s visa may prevent or discourage similar conduct by other persons.  On the question of the likelihood that the conduct may be repeated (paragraph 2.10 of the Direction), the Tribunal takes into account that the offences are serious and that Mr Lui breached the terms of his parole and was returned to gaol in 2006 and he committed earlier offences while on a good behaviour bond.  The sentencing Judge in 2004 referred to Mr Lui’s drug and alcohol problems and the likelihood of re-offending if these problems were not addressed.  The pre-sentence report stressed the need for drug and alcohol counselling or intensive rehabilitation and anger management counselling.  The Tribunal accepts Mr Lui’s evidence of rehabilitation such as completion of courses in gaol and his involvement with the church between January/February 2008 and 11 April 2008 as described by Pastor Isamaela.

25.      The Tribunal finds that Mr Lui’s criminal history, including committing his most recent offence while on a suspended sentence and breaching his parole conditions shortly after release, together with his drug and alcohol abuse, support the conclusion that Mr Lui remains at some risk of re-offending.  This has serious potential consequences for the protection of the Australian community.  However the Tribunal takes into account that Mr Lui’s brother attended the hearing with two of his daughters and is supportive of Mr Lui continuing to live with them and maintaining a close family relationship.  The Tribunal accepts the evidence from Pastor Isamaela, an experienced and committed Christian minister, that Mr Lui has already made a contribution to the community by counselling young people and participating in the activities of the church.  In all the circumstances the Tribunal is satisfied that if permitted to remain in Australia Mr Lui would continue to live with his brother and accept the support of the church in promoting his rehabilitation, so that the community would be protected from further offending by him.

26.      In respect of the second primary consideration concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia, although members of the community who were fully aware of Mr Lui’s circumstances and of his offending would expect a fair and humane approach to be taken (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054).

27.      The Tribunal takes into account the seriousness and frequency of the offences committed by Mr Lui and that the offences were committed over a lengthy period.  This demonstrates disrespect for Australian laws.  The Tribunal accepts that the offences were committed in New South Wales where Mr Lui’s family ties are minimal, and that he showed remorse for his most recent offence by pleading guilty at the earliest opportunity.  The Tribunal also accepts the evidence from Pastor Isamaela that since February 2008 family members and the church community have been instrumental in helping Mr Lui to rehabilitate himself and keep away from former associates who engage in drug and alcohol abuse, and that this support would continue if Mr Lui is permitted to remain in Australia.  These are factors that may contribute to satisfying the Australian community that he would, if given the opportunity to remain in Australia, become a responsible member of the wider community.

28.      The Tribunal finds that the Australian community would expect that Mr Lui continue to make efforts to rehabilitate himself and demonstrate a willingness to cease his criminal behaviour.  In all the circumstances Mr Lui has shown an ability and genuine desire to change in a short period, and the Australian community would expect that he should be given an opportunity to continue his efforts in a supportive environment.  The Tribunal is satisfied that such an environment would be available to him in Melbourne at his brother’s home and supported by the church, to which he has already made a valuable contribution.

29.      In respect of the third primary consideration, concerning the best interests of a child, the Tribunal finds that there is no child whose interests would be affected by a decision to cancel Mr Lui’s visa, other than his nieces with whom he was living until taken into immigration detention, and would continue to live with if released into the community.  Therefore this primary consideration has minimal practical relevance in the application under review.

30.      In respect of secondary considerations, the Tribunal takes into account that Mr Lui has lived in Australia since 1993 and that a decision that forced him to return to New Zealand would cause disruption to his lifestyle and may place in jeopardy the gains he has made through his involvement with his family in Melbourne and the church.  However he has relatives in New Zealand and would not be faced with problems of language or severe cultural differences if he was required to return to that country.  Facilities exist in New Zealand for drug and alcohol rehabilitation and treatment, although the Tribunal accepts that his relationship with his parents and other New Zealand-based relatives has not been as strong as his recent relationship with his siblings and nieces in Melbourne.  There are Christian churches in New Zealand, although the Tribunal accepts that to establish himself in a new church in his country of origin in unfamiliar circumstances after a long absence might be difficult for Mr Lui at a time when he has demonstrated a degree of stability that is an important part of his rehabilitation.

31.      In weighing up all the circumstances of the primary considerations and then the secondary considerations the Tribunal concludes, for the reasons given, that it should not exercise the discretion to cancel Mr Lui’s visa.

DECISION

32.      The Tribunal sets aside the decision under review and the visa of the applicant is not cancelled.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  20 June 2008
Date of decision:  25 June 2008
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms T. van Duyn
Solicitor for respondent:              Clayton Utz