Mahanusu and Minister for Immigration and Citizenship

[2010] AATA 457

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 457

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1501

GENERAL ADMINISTRATIVE DIVISION        )

Re             MALAKAI NAU MAHANUSU

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMs G Ettinger, Senior Member

Date18 June 2010

Place             Sydney

DecisionThe Tribunal affirms the decision under review which is the cancellation of Mr Malakai Nau Mahanusu’s Special Category (Temporary) Class TY) Subclass 444 visa.

……………[SGD]…………………...

Ms G Ettinger
  Senior Member

CATCHWORDS

IMMIGRATION – Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to grant applicant's visa pursuant to s 501 of the Migration Act 1958 - Minister’s Direction No 41 issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied – primary considerations - protection of the Australian community – risk of recidivism - length of time that a person has been ordinarily resident in Australia – other considerations - decision under review affirmed.

Migration Act 1958 s 501

Direction No 41

Shi v Migration Agents Registration Authority (2007) 158 FCR 525

REASONS FOR DECISION

18 June 2010 Ms G Ettinger, Senior Member

SUMMARY

1.      Mr Malakai Nau Mahanusu applied to this Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship dated 7 April 2010 to cancel his Special Category (Temporary) Class TY) Subclass 444 visa. The visa was cancelled because Mr Mahanusu does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act). In considering his application, the Tribunal may nevertheless exercise a discretion following the application of Direction 41 if that enables it to make the correct or preferable decision in regard to his application.

2.      Mr Mahanusu submitted that the discretion to grant him a visa should be exercised in his favour because following his incarcerations and the courses he has undertaken, he has changed his attitudes towards society, his drug habit was being controlled by his participation in a methadone program, and he was now a changed person.

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

BACKGROUND

4.      Mr Mahanusu who was born in New Zealand on 1 June 1984, came to Australia with his family in 1997 when he was approximately 13 years old. The family, of Tongan origin, came to Australia in connection with their Church, being the Mormon Church, in which Mr Mahanusu told me his father holds office as a bishop. Mr Mahanusu told me that he attended school until year nine, but did not complete that year until after he had landed himself in juvenile detention. Mr Mahanusu explained that he was drinking and engaging in fights from the age of approximately 12 or 13 years, and that he was committed to juvenile detention for assaults and for armed robbery. Mr Mahanusu said that following that, he continued to drink and to smoke marijuana, and became addicted to heroin. He explained that in order to obtain money for heroin, he engaged in larceny.

5.      On 21 October 2003, Mr Mahanusu was convicted and sentenced to a six month term for each of the following:

·     Goods in custody

·     Shoplifting

·     Take and drive conveyance

6.      Mr Mahanusu said that he had committed approximately 30 offences in 2004, but that his most recent convictions in 2006 were for only 10 offences committed with a co-offender over a period of 38 days from 29 August to 10 October 2004. Of the 10 offences committed in 2004 of which Mr Mahanusu was convicted on 23 February 2006:

·     Counts 1 – 6 and Counts 9 & 10 were Robbery in company;

·     Count 7 was  Aggravated assault with intent to rob;

·     Count 8 was Rob whilst armed with dangerous weapon.

7.      Judge Knox who sentenced Mr Mahanusu in 2006 stated that the method followed in relation to each of the offences was that Mr Mahanusu and his co-offender entered the relevant premises. On some occasions the co-offender selected items for purchase and engaged the employees of the various premises in conversation while Mr Mahanusu carried out the physical aspects of the robbery.  His Honour continued:

Violence took place in the following matters. In terms of count 1, the demand for money including the threat ‘I have a knife and I can hit you’. The victim was also punched in the eye. In terms of count 2, the syringe used containing the blood of W… (the co-offender) accompanying the threats. Count 3, the threats towards the victim to get on the ground and that if she did so, she would not get ‘hurt’. Count 4, there was violence towards the victim having her head forced down behind the counter. Count 5 violence involving both Mahanusu and W, W punching the victim in the face on two occasions. Count 6, Mahanusu grabbing the victim while the threat was used ‘This is a hold-up’. Count 7, Mahanusu producing an item and saying ‘Open the till I’ve got a knife’. Count 8, Mahanusu grabbing the victim’s shirt and pushing him away from the till saying ‘Sit down, I don’t want to hurt you’. Count 9, Mahanusu lunging forward and pushing the victim with both hands to his chest, the victim losing his balance and falling backwards and hitting his back on a cigarette stand behind him and count 10, Mahanusu pointing the needle of a syringe towards the victim’s stomach saying ‘Just be seated, open the till and don’t shout’. Mahanusu forced the victim into the rear stock room and said ‘Don’t come out of that room for five minutes’.

…..

… he commenced heroin usage when he was fourteen years of age. He experimented with other substances and, particularly started to abuse alcohol from the age of fifteen. He stopped drinking at seventeen because it caused him to become more violent and aggressive. Prior to his incarceration and relevantly at the time of these offences it seems to be that he was using heroin on a daily basis. He was also regularly taking Rohypnol tablets. He was unsuccessful in a self-withdrawal programme. He did undertake and complete a four week drug rehabilitation in 2000 but that does not seem to have done much given the subsequent record that he has. He is said to have commenced a methadone treatment programme in custody on 18 May 2005. The report notes that he is a man with a significant history of drug dependency and related criminal behaviour.

….

It does seem as I have indicated in the course of submissions that the offender has had the opportunity to experience rehabilitation programmes but that really has not been to any avail. He has not availed himself of the opportunities which have been extended to him in the past.

8.      Mr Mahanusu agreed the offences he committed were serious, but explained that at the time he needed the money to pay for his heroin addiction.

9.      Judge Knox detailed the sentences of some four years for each of the ten offences to be served concurrently. His Honour summarised as follows:

“In relation to the counts on the indictment I impose the following sentences. I will set these out in detail, but the total effect of the sentence is this, a total effect of being in custody for five years and six months which will commence from 12 October 2004 until 11 April 2010, and you will be on parole thereafter for a period of one year and four months from 12 April 2010 until 11 August 2011.

10.     On 10 March 2006 Mr Mahanusu was convicted of larceny and of possession of goods suspected of being stolen, and sentenced to a fixed term of six months for each.

11.     The records before me indicated that during his prison term, and between 11 January 2004 and 6 October 2008, Mr Mahanusu was charged with 21 offences in prison, ranging from failing to provide urine samples, to smoking in a non-smoking area, disobeying directions, possessing drug implements, possessing drugs, and assaults. Mr Mahanusu submitted, and I noted, that in line with the changes in attitude he says he has adopted, there were no prison offences recorded after 6 October 2008 until his release into immigration detention on 12 April 2010.

12.     On release from prison, Mr Mahanusu was placed in immigration detention where he has been since 12 April 2010.  On 7 April 2010 a delegate of the Minister for Immigration and Citizenship cancelled his Special Category (Temporary) Class TY) Subclass 444 visa, and he appealed to this Tribunal against that decision on 16 April 2010.

RELEVANT LAW AND POLICY

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

14. Section 501(1) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

15.     Direction No 41 which is made pursuant to section 499 of the Act must be applied if exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up the date of the decision of the Tribunal may be taken into account. (Shi v Migration Agents Registration Authority (2007) 158 FCR 525).

16.      Having reviewed the offences with which Mr Mahanusu had been charged, and those of which he was convicted, and the sentences which followed, I am satisfied that he does indeed not pass the character test.

17.     I am mindful that the Objectives of Direction No 41 as set out in paragraph 5 are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into, and presence in Australia of non-citizens.  Paragraph 5.1(2) states that:

In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

18.     Direction No 41 contains a number of primary considerations and other considerations to which the Minister, and therefore the Tribunal standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

19.     The primary considerations in Direction No 41 are set out in paragraph 10(1):

…

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)   the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)   whether the person was a minor when they began living in Australia;

(c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)   relevant international obligations, including but not limited to:

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

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

20.     There are also a number of other considerations that, where relevant, must be taken into account, but, generally, in accordance with Direction No 41, paragraph 11(1), they should be given less weight than the primary considerations.  Both the primary considerations and other considerations are discussed in the paragraphs below.

PRIMARY CONSIDERATIONS

21.     The relevant primary considerations in Mr Mahanusu’s case are the protection of the Australian community, thus the seriousness and nature of the relevant conduct, and the risk that conduct may be repeated. Also relevant is that Mr Mahanusu was a minor when he began living in Australia, the length of time he has been ordinarily resident in Australia prior to engaging in criminal activity, and any relevant international obligations.

Protection of the Australian Community

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

23.     With regard to the seriousness of Mr Mahanusu’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2). I am mindful that Mr Mahanusu has been charged with, and found guilty of aggravated assault with intent to rob, robbery in company, robbery whilst armed with dangerous weapon, as well as other offences such as larceny, possessing goods suspected of being stolen, and taking and driving a conveyance. 

24.     I had before me Mr Mahanusu’s list of offences and his convictions from 2003 as detailed in the paragraphs above. Mr Mahanusu explained that he was drinking and engaging in fights and assaults from the age of approximately 12 or 13 years, and that he was committed to juvenile detention for assaults and for armed robbery.  In 2003 he was sentenced to six months custodially for shoplifting, goods in custody and driving a conveyance.

25.     Judge Knox in sentencing Mr Mahanusu and his co-offender on 23 February 2006 stated as follows:

Violence took place in the following matters. In terms of count 1, the demand for money including the threat ‘I have a knife and I can hit you’. The victim was also punched in the eye. In terms of count 2, the syringe used containing the blood of W… (the co-offender) accompanying the threats. Count 3, the threats towards the victim to get on the ground and that if she did so, she would not get ‘hurt’. Count 4, there was violence towards the victim having her head forced down behind the counter. Count 5 violence involving both Mahanusu and W, W punching the victim in the face on two occasions. Count 6, Mahanusu grabbing the victim while the threat was used ‘This is a hold-up’. Count 7, Mahanusu producing an item and saying ‘Open the till I’ve got a knife’. Count 8, Mahanusu grabbing the victim’s shirt and pushing him away from the till saying ‘Sit down, I don’t want to hurt you’. Count 9, Mahanusu lunging forward and pushing the victim with both hands to his chest, the victim losing his balance and falling backwards and hitting his back on a cigarette stand behind him and count 10, Mahanusu pointing the needle of a syringe towards the victim’s stomach saying ‘Just be seated, open the till and don’t shout’. Mahanusu forced the victim into the rear stock room and said ‘Don’t come out of that room for five minutes’.

26.     Judge Knox detailed the sentences of some four years for each of the ten offences to be served concurrently. His Honour summarised the sentences as follows:

In relation to the counts on the indictment I impose the following sentences. I will set these out in detail, but the total effect of the sentence is this, a total effect of being in custody for five years and six months which will commence from 12 October 2004 until 11 April 2010, and you will be on parole thereafter for a period of one year and four months from 12 April 2010 until 11 August 2011.

27.     Mr Mahanusu agreed when he gave his evidence before me that they were serious crimes as found by Judge Knox, and reflected in the custodial sentences imposed. Mr Mahanusu gave an explanation for his actions when he appeared before me. He said that he needed money for his heroin habit, and had stolen goods originally, in order to sell them, but that as the heroin habit became more entrenched, he stole money rather than goods.

28.     Mr Mahanusu said that the robberies and the violence with which they were carried out were not planned, but that he was addicted to heroin, and he needed money to fund his heroin habit. However there appears to be another view of that. At paragraph 9.2 of the Discharge Report of the Violent Offenders Therapeutic Program dated 17 December 2009, the authors, psychologists, wrote as follows in regard to planning:

A central feature of Mr Mahanusu’s violent and general offending was planning though there were also opportunistic aspects to the offences. When discussing his life patterns, Mr Mahanusu recognised that his criminal lifestyle had taken more planning than he had previously thought, for example, choosing a different ‘rich’ area each day to commit crime thereby avoiding getting known, or caught, in that area. He stated that he would take time to look around the area for opportunities where he could get money without using violence and where there would be no witnesses. Mr Mahanusu even went so far as to wear clothes that he thought would ‘blend in’ with the area he had chosen, for example business attire in the city or casual clothes in tourist areas.

29.     I am satisfied from the evidence of the psychologists to which I have referred above, and note that although Mr Mahanusu did not consider his robberies were planned, the pattern with which he carried them out, particularly in company with his co-offender satisfies me that they were well planned. I accept Mr Mahanusu’s evidence that he required the money for his heroin habit, but am also satisfied from Judge Knox’s judgment that “… drug addiction is not a mitigating factor in serious offences. Furthermore addiction is not an excuse”.  

30.     Mr Mahanusu expressed regret for having committed the armed robberies, particularly one on a person he knew. He explained how he had changed his attitude towards crime since being incarcerated, and being recently released on parole in that, unlike previously, he was no longer planning retribution and further crime. He told me that had developed new tools and skills for coping when he was released

31.     In considering the protection of the Australian community per Direction 41, I have dealt with the seriousness and nature of the relevant conduct by Mr Mahanusu in the paragraphs above. There is no doubt that his offences have been serious as reflected in the sentencing remarks of Judge Knox, and the custodial sentences his Honour imposed.

32.     I next moved to consider the risk of the conduct being repeated.

33.     In that context I am mindful of the evidence that Mr Mahanusu has undertaken a number of courses and activities in order to assist with his problems, and I am satisfied from the evidence he gave at the Tribunal that he now has some insight into his problems, which will assist with his rehabilitation. When asked about gambling, he said that he sometimes gambled, but was not addicted to gambling.

34.     The details of the courses are in the documents before me, and have included courses in partial completion of Certificate I in Information Technology ICA 10105 such as operating a database application (10 November 2009), operating a word processing application (24 November 2009),  operating a personal computer (10 November 2009), and writing personal texts in literary forms (May 2009). He also passed a course in September 2009 on operating a spreadsheet application, and listening and responding in everyday contexts (June 2009). Mr Mahanusu also undertook courses with the Anglican Chaplain, a numeracy and literacy report in October 2006, and various drug and alcohol programs in the Violent Offenders Therapeutic Program in October and November 2009. Mr Mahanusu told me that he has also done courses in brick laying and has a forklift driver’s licence.

35.     Mr Mahanusu has also undertaken a two week alcohol abstinence program at Kirkwood House (October 2005), a 10 week Anger Management Program, and the Pathways to Education and Employment Program (December 2005), 12 weeks of residential rehabilitation at Kirkwood House in 2006 while under the supervision of the Probation and Parole Service, a Fathering Course in August 2006, Positive Lifestyle Program in August 2008, and Kirkwood House again in 2009. Mr Mahanusu has also worked as a volunteer in various places, (acknowledged in the G-documents).

36.     Mr Mahanusu was on rehabilitation programs for periods of a few weeks in 2000/1, 2002.  He was discharged from a three months course at Palms West after approximately two or three weeks following positive urinalysis, although he submitted that the result of the test was not disclosed to him, and it may have been positive because he took Panadeine Forte. I have noted Judge Knox’s 2006 remarks regarding the rehabilitation attempts Mr Mahanusu made:

It does seem as I have indicated in the course of submissions that the offender has had the opportunity to experience rehabilitation programmes but that really has not been to any avail. He has not availed himself of the opportunities which have been extended to him in the past.

37.     I am mindful that Mr Mahanusu is now on a methadone program.

38.     In considering the risk that the conduct may be repeated, I am mindful of the   previous general conduct and total criminal history including Mr Mahanusu’s conduct in prison, and the fact that from October 2008 to his release in April 2010 there is no record of offences committed in prison.  The Respondent submitted that the risk of re-offending is high given that Mr Mahanusu was on bail when, in 2004, he committed the 10 offences of which he was convicted in 2006. Mr Johnson further submitted that it is of particular relevance that the breaches were in relation to drug use and violence which tended to show that Mr Mahanusu had not rehabilitated. Mr Johnson also referred to the Discharge Report and Judge Knox’s remarks in that regard (see above).

39.     There is no question that Mr Mahanusu’s conduct was criminal and serious, and that rehabilitation attempts have not been positive in that he has returned to drug taking. He is however currently on a methadone program and has reported a change in attitudes to the people he would mix with, and company he would keep if permitted to stay in Australia.

40.     I have noted that Mr Mahanusu has never been in paid employment in Australia, and has been involved in crime virtually since his arrival here as a 13 year old. He says that he would take some time to adapt to being in the world outside prison, and that he wants to demonstrate he can do that. He says he has the support of his family and his present girlfriend Larissa. 

41.     I have noted the opinion of the psychologists who are the authors of the Discharge Report I had before me. They have at paragraphs 11.1 discussed stable risk factors in relation to Mr Mahanusu, and at 11.2 commented on acute risk factors, concluding in paragraph 12, that support such as alcohol counselling, VOTP maintenance to assist with addressing adjustment back into the community, assistance with obtaining employment, regular urinalysis, and assistance with leisure activity would be recommended. Risk factors mentioned are association with undesirable persons and areas associated with drug taking, risk of return to drug abuse and difficulties with adjusting to the environment and securing employment.

42.     I am not satisfied that Mr Mahanusu can, even with the support mentioned above, maintain a lifestyle without drugs and the resultant crime. His drug habit is a long entrenched one, and his family support appears not to be strong. Mr Mahanusu told me that after the initial rejection by his family because he had let them down, they now support him. He said that did not like his family visiting when he was in prison because of the distress he had caused them. I noted that apart from letters from his parents, and two sisters, there was no support expressed for him. These were not sworn statements, and no-one appeared at the hearing by way of support. Mr Mahanusu told me that it was because it was a week day and they were all at work, including his girlfriend.

43.     Taking into account all the evidence and submissions, I am not satisfied that the significant risk of Mr Mahanusu again engaging in criminal conduct in Australia, is low.  I am satisfied that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence is likely to be compromised by Mr Mahanusu, if he were to remain in Australia. On the evidence before me, I find that Mr Mahanusu has only been on the methadone program for a short time, he has not done well in drug rehabilitation programs as indicated in the Discharge Report and by Judge Knox, and given the risks identified in the Discharge Report, the overall risk of Mr Mahanusu re-offending is a real one.

Whether the person was a minor when they began living in Australia and the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

44.     I note that Mr Mahanusu was 13 years old when he arrived in Australia in 1997. Unfortunately his criminal behaviour commenced soon afterwards with assaults taking place in the context of alcohol and marijuana. He was in juvenile detention, followed by prison sentences in 2003, and in the years following as detailed in the paragraphs above. This weighs against his remaining in Australia.

Relevant international obligations, including but not limited to:

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

(b)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

45.     Mr Mahanusu was asked about a relationship with a woman who now has two children and lives in the USA. He told me that one of those children may be his, but that he does not know them, and has no personal relationship with them. However he emphasised how close he feels to his youngest sister now 19 years old.  His evidence about contact with her was first that he phoned her daily, and later, that it was once every two to three days. We had an unsworn statement from her supporting her brother. She was not present at the hearing, and I had no opportunity of asking her questions or assessing her evidence. There is no indication Mr Mahanusu supports the children in the USA or his sister, financially.

46.     I accept Mr Mahanusu’s evidence that he would miss his sister if he were not to be permitted to stay in Australia, but consider that there are no obligations in relation to the best interests of any child, or any international obligations which weigh towards Mr Mahanusu remaining in Australia. Protection of the Australian community is a far stronger consideration.

OTHER CONSIDERATIONS

47.     Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations.  Relevant considerations in Mr Mahanusu’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, his links with New Zealand, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

48.     I have already noted above that Mr Mahanusu was born in New Zealand of Tongan parents, and that he lived there until 1997 when he came to Australia, aged 13.  He is now 26 years old, and to my knowledge has not returned to New Zealand. He has spent most of the time since arriving in Australia in custody of one kind or another. He has never undertaken paid employment in Australia, although I noted from the Discharge Report that Mr Mahanusu worked as a leading hand in the store room at the Mid North Coast Correctional Centre in 2006/7 where he was considered co-operative and undertook his allocated duties, however attracting the comment that he did the bare minimum and did not look for additional tasks.

49.      Mr Mahanusu told me that he has visits from his family and his girlfriend, and that he intends to spend more time with them when he can. I accept that he is particularly fond of his youngest sister, and says they would both suffer if separated. I am mindful of letters of support for Mr Mahanusu from his parents and two of his sisters. However no-one of the family attended the hearing with him or on his behalf. When I asked Mr Mahanusu about that, he said that it was a work day and no-one was free to attend.  I noted from the Discharge Report that the authors stated: Mr Mahanusu reported that he has a good relationship with his family, however throughout the Program he received very few visits and he had difficulty contacting them by telephone ….  I conclude that Mr Mahanusu’s family ties in Australia are not strong.

50.     I am satisfied that given he does not know them or have contact with him, that any child or children Mr Mahanusu has in the USA do not weigh for or against his removal from Australia.

51.     In considering the various sub-paragraphs of paragraph 11, I am mindful that Mr Mahanusu’s age, and education are not particularly relevant considerations in this case, although the psychologists who authored the Discharge Report thought that Mr Mahanusu’s good literacy skills, his average intelligence and his ability to undertake tasks during the Program, were factors which placed Mr Mahanusu in a good position when seeking future employment or training.

52.     I noted that there was a letter dated 21 July 2009 from the Department of Immigration and Citizenship to Mr Mahanusu in Long Bay Correctional Centre giving him a Notice of Intention to Consider Cancellation of Your Visa, and giving him the opportunity of making submissions as to why his visa should not be cancelled.

53.     I am satisfied that these other considerations do not outweigh the primary consideration of the protection of the Australian community.  I am satisfied that the protection of the Australian community would be compromised by Mr Mahanusu remaining in Australia. Mr Mahanusu has only been on the methadone program for a time, and based on his history of misconduct and drug use, his failure to complete certain rehabilitation programs, and on the risk factors identified in the Discharge Report, I am not satisfied that Australia should bear the cost and the risk of him re-offending here.

CONCLUSION

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

55.     Not surprisingly Mr Mahanusu argued that he should be allowed to remain in Australia, while Mr Johnson contended that the primary consideration of the protection of the Australian community weighed heavily in favour of the cancellation of Mr Mahanusu's visa. I have already considered both arguments and the submissions of both parties above.

56.     On the evidence before me, including that of the psychologists in the Discharge Report my conclusion is that the overall risk of Mr Mahanusu re-offending is difficult to assess with any degree of certainty as he has only been on the methadone program for a time, and has spent quite and amount of the time since he arrived in Australia in custody. However one factor is that he has not done well in rehabilitation programs. Based on all the evidence before me, including the risk factors identified in the Discharge Report, and Judge Knox’s findings, I am satisfied that the protection of the Australian community would be compromised if Mr Mahanusu were to remain in Australia.

57.     In terms of the relevant other considerations, to which I am required to give less weight, in my view, Mr Mahanusu’s family ties in Australia are the most relevant of the other considerations in this case. Although Mr Mahanusu’s evidence was that in recent times his family had stood behind him, and visited him, I was satisfied from the evidence of the psychologists in the Discharge Report that he did not have many visits from them, and could not contact them at times. I am satisfied that Mr Mahanusu does not have strong family ties in Australia, and I understand he does not have many family members in New Zealand. I am also mindful from his own evidence and the Discharge Report that Mr Mahanusu may have difficulties adjusting to life outside a correctional institution whether he is in Australia or New Zealand.

58.     Having weighed up all the considerations, I am satisfied that the decision of the Minister to cancel Mr Mahanusu’s visa should be affirmed.

DECISION

59.     The Tribunal affirms the decision under review which is the cancellation of Mr Malakai Nau Mahanusu’s Special Category (Temporary) Class TY) Subclass 444 visa.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:   ……….[sgd].................................................................

Associate

Date of Hearing  7 June 2010

Date of Decision  18 June 2010

Applicant  Self Represented
          Respondent’s solicitor            Mr G Johnson, DLA Phillips Fox