Mahu Junior Maireriki and Minister for Immigration and Citizenship

[2012] AATA 552

[2012] AATA 552

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2493
Re	Mahu Junior Maireriki
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Mr M D Allen, Senior Member Ms J L Redfern, Senior Member
Date	24 August 2012
Place	Sydney

The Tribunal affirms the decision under review.

................[sgd]........................................................

Mr M D Allen, Presiding Member

Catchwords

IMMIGRATION – visa cancellation – character test – substantial criminal record – application of Direction 41 under the Migration Act 1958 – seriousness and nature of conduct – high risk of recidivism – real risk to the Australian community outweighs all other factors – decision under review affirmed.

Legislation

Migration Act 1958, ss 499, 501

Cases

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81

Secondary Materials

Direction [No. 41] – Visa refusal and cancellation under section 501

REASONS FOR DECISION

Mr M D Allen, Senior Member
Ms J L Redfern, Senior Member

24 August 2012

1. On 30 May 2012 a delegate of the Respondent cancelled the Applicant’s absorbed persons visa on the ground that he had failed the character test set out in s 501 of the Migration Act 1958 (the Act).

2. Section 501(2) of the Migration Act 1958 states:

   (2)  The Minister may cancel a visa that has been granted to a person if:

   (a)  the Minister reasonably suspects that the person does not pass the character test; and

   (b)  the person does not satisfy the Minister that the person passes the character test.

3. Section 501(6) of the Act outlines the character test:

   (6)  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; or

   (d)  in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

   (i)  engage in criminal conduct in Australia; or

   …

   Otherwise, the person passes the character test.

4. A person has a “substantial criminal record” under s 501(7)(c) of the Act if “the person has been sentenced to a term of imprisonment of 12 months or more”.

5. In exercising the discretion whether or not to cancel the Applicant’s visa, we are required, pursuant to s 499 of the Act to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of our discretion.

6. At the time the Minister’s delegate made the decision in this matter, and currently, Ministerial Direction No. 41 regarding the refusal and cancellation of visas under s 501 of the Act is in force.

7. Direction No. 41 states as its objectives:

   5.1 Objectives

   (1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

   (2) 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.

   (3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

8. Further general guidance is given in paragraph 5.2(2) of Direction No. 41, namely:

   5.2 General Guidance

   (2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:

   (a) the nature of any harm that the person concerned may cause to the Australian Community; and

   (b) the risk of that harm occurring.

9. Direction No. 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa, the decision-maker shall take into account four primary considerations and seven other considerations.

10. In these proceedings it was not disputed by the Applicant that, given the nature of his offence and the sentence imposed, he did not pass the character test.

11. The primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction No. 41 are: the protection of the Australian community from serious criminal or other conduct; whether the person was a minor when they began living in Australia; the length of time the person has been ordinarily resident in Australia before engaging in criminal activity; and, any relevant international obligations.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

12. Paragraph 10.1 of Direction No. 41 reads:

    10.1 Protection of the Australian Community

    (1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

    (2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

    (a) the seriousness and nature of the relevant conduct; and

    (b) the risk that the conduct may be repeated.

13. Paragraph 10.1.1 reads, inter alia:

    10.1.1 The seriousness and nature of the conduct

    (2) The following are examples of offences and conduct that are considered serious:

    …

    (b) all offences perpetrated against a child (particularly sexually-based offences);

    …

14. On 28 September 2007 the Applicant was found guilty by a jury of the offence of persistent child sexual abuse.  On 12 December 2007 Hughes DCJ sentenced the Applicant to a total of nine years imprisonment, with a non-parole period of six years.

15. The offence of which the Applicant was convicted was an omnibus offence. To convict, the jury must have found beyond reasonable doubt that, at least on three separate occasions occurring on separate days, the Applicant engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge.

16. An aggravating element in the Applicant’s offending was that the victim of his offending was his step-daughter and was, as Hughes DCJ found, vulnerable as she was very young.  Hughes DCJ also found that the Applicant had admitted physically abusing the victim.

17. In addition to the offence for which he was sentenced on 12 December 2007, the Applicant has, what can only be described as, an appalling and persistent record of criminal convictions, commencing from when he was aged 12 years.  Over a period of 21 years, the Applicant has been convicted of over 60 offences including robbery in company (twice), robbery with striking and wounding, maliciously destroying property and escape police custody.

18. There can be no doubt, given the nature of the offence for which the Applicant was sentenced, an offence which can be described as abhorrent to the whole community, and the record of his prior offences, militate against the exercise of any discretion in the Applicant’s favour.

    RISK THAT THE CONDUCT MAY BE REPEATED

19. A disturbing aspect of the Applicant’s presentation is that he still denies committing the offences for which he was imprisoned.  A Probation and Parole Report dated 1 February 2012 contains the following note:

    Attitude to Offence/Victim

    Inmate categorically denies the offence. He claimed that the victim made up the sexual assaults because she did not want to live with him and her mother because he was “heavy handed” with her. Mahu was asked to describe “heavy handed” he stated that he would beat her which often resulted in bruising. He stated that on once [sic] occasion he threw a TV remote and [sic] the victim and it hit her in the eye and caused her a black eye, he said that he had to keep her from school for a week because of the severity of the assault. The inmate claimed that he was too ashamed of some of the physical assault that he could not speak about them.

    Before this Tribunal the Applicant reiterated his innocence to the offences.

20. On 13 April 2012 the NSW State Parole Authority refused to grant parole to the Applicant.  That decision was affirmed at a later meeting on 3 July 2012, with the Parole Authority determining that the Applicant needed to address his offending behaviour.  The Applicant has now entered into what is stated to be a “Deniers” programme.

21. Prior to sentencing, the Applicant underwent a psychological assessment at the request of his then solicitors.  The report of Ms Collins, psychologist, noted:

    Substance abuse appears to represent his most significant risk factor for recidivism, given the ongoing abuse patterns and his ambivalence with regards to total abstinence. No comment can be made with regards to the alleged sexual abuse given Mr. Maireriki continues to assert his innocence.

22. As pointed out by the Applicant, he has been alcohol and drug free during his period of incarceration, but he did concede that upon release he could revert to using alcohol and drugs.

23. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81, Davies J, sitting as President of this Tribunal, said at N133 (authorities omitted):

    The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again… And even if the risk of recidivism is not high, the risk will strongly support deportation when the recidivism, if it does occur, may cause great harm.

24. As to what might constitute a real risk of recidivism, the Full Court of the Federal Court, in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493, held that there was no inconsistency in finding that a risk (of recidivism) was real in the sense that it is not far-fetched or fanciful and that the degree of probability of its occurrence is quantitatively low.

25. Compare the remarks of Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] namely:

    Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.

    Those remarks have particular resonance in this matter given the Applicant’s long list of prior convictions.

26. We are satisfied that there is a real risk that this Applicant may re-offend and were he to do so that offence or those offences could well be serious offences as defined in paragraph 10.1.1(2) of Direction No. 41.

    WHETHER THE APPLICANT WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

27. The Applicant was a minor when he first arrived in Australia.

    LENGTH OF TIME THE PERSON HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA

28. The Applicant first arrived in Australia on 23 June 1981 at age seven and has been resident in Australia since that time.  His offending began with two convictions for stealing on 6 September 1986, that is to say, some five years after arriving in Australia and at age 12.  He has continued to offend since then.

    INTERNATIONAL OBLIGATIONS

29. The only relevant international obligation is that pursuant to the convention of the Rights of the Child.

30. The Applicant has three children, the eldest being over 18 years and currently residing in New Zealand.

31. The second eldest is J. J’s mother is also the mother of the victim.  No evidence was adduced from either J or his mother as to their attitude to the Applicant once he is released from prison.

32. J has been writing to the Applicant and speaking to him by telephone whilst he is in prison, and the Applicant says that this was with the encouragement of his mother.  About a year ago the Applicant told J that he would neither write nor telephone until released from prison.

33. Direction No. 41 applies the presumption that generally a child’s best interest would be served if he or she remains with his parents.  In the Applicant’s case this does not apply, but it may be assumed that a child’s best interest would be served if the child maintains regular contact with the non-custodial parent.

34. In the case of J, there is no evidence before us as to his mother’s current attitude towards the Applicant and what would be the attitude of J’s half-sister, the Applicant’s victim.

35. Should the Applicant be removed to New Zealand, J is of an age where he can visit him and regular contact can be maintained by telephone.

36. The Applicant’s third child is S.  He has not seen S since S was two years of age.  Although the Applicant maintains that he now wishes to make contact with S and his mother and to be a father figure to S, there is no evidence before us as to the attitude of either S or his mother.

37. S is currently aged 15 years.  At present there is no indication as to what conditions will be placed on the Applicant’s parole as to his association with minors, but any contact between the Applicant and both J and S will no doubt be the subject of restrictions.

38. Given the lack of involvement the Applicant has had in S’s upbringing, we do not consider that the interests of S militate against the cancellation of the Applicant’s visa.

39. The Applicant also referred to nieces and a nephew with whom he intends to maintain a relationship, and who he states would be affected by his removal from Australia.  In particular, he referred to the children of his deceased brother.

40. Apart from the fact that these children have not had contact with the Applicant for the last six years, the report of a psychologist on 10 May 2012 to the New South Wales Department of Corrective services reads, inter alia, regarding the home of the Applicant’s parents:

    The fact that the offences occurred at times when other people were present or even in the same room, says the offender is prepared to take risks to offend…

    Therefore this address appears problematic and unsuitable. However I recommend that a joint HV with the COS Psych still be undertaken, as the offender is likely to want to visit his parents upon release, and it is questionalbe [sic] at this point whether his parents are likley [sic] to be responsible people regarding supervising the offender if children are present.

    Given these comments, it may be in the interests of the Applicant’s nephew and nieces that the Applicant does not have contact with them.

41. As for the Applicant’s children, there is no evidence before us as to what the attitude of the children’s parents is regarding their children associating with the Applicant.

    OTHER CONSIDERATIONS

42. The Applicant referred to the negative effect his visa cancellation would have upon his parents.  We accept that they will have regrets if the Applicant is returned to New Zealand.

43. On the other hand, the Applicant’s parents have one other son who is resident in Sydney with his family, and a daughter and her family in Western Australia.  They have never been dependent upon the Applicant for support, and the Applicant’s father is in stable employment.  The Applicant’s parents do not, on the material available to us, have any health issues which would militate against the Applicant’s visa cancellation.

44. No evidence is before us that the cancellation of the Applicant’s visa would in any way affect the lives of his brother and sister and their families, or that of his widowed sister-in-law.

45. We find that there are no other considerations that would militate against the Applicant being returned to New Zealand.  As stated above, his eldest son currently resides there and he has relatives on his mother’s side residing in New Zealand.  The Applicant is in good health, and though he has no employment skills would be able to undertake labouring type work.

    CONCLUSION

46. Notwithstanding the natural regret the Applicant’s parents will experience, and the possible benefit to the Applicant’s sons, J and S, having closer contact with their father, we find that the risk of the Applicant reoffending, and the very real risk that any subsequent offence would be a serious offence, outweighs all other considerations and that the Applicant’s visa should be cancelled.

    DECISION

47. The Tribunal affirms the decision under review.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member and Ms J L Redfern, Senior Member.

.............[sgd]...........................................................

Associate

Dated 24 August 2012

Date(s) of hearing	15 August 2012
Applicant	In person
Solicitors for the Respondent	Ms A Graham, Clayton Utz