MALE TAMMY TEUILA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 351
•13 June 2012
[2012] AATA 351
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1348
Re
MALE TAMMY TEUILA
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 13 June 2012 Place Brisbane The Tribunal affirms the decision under review.
...............[Sgd]..............................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – – Visa cancellation – New Zealand citizen – Extensive criminal history for serious offences – Extensive criminal history for failing to comply with court orders – Failure to pass character test – Discretion to cancel visa – Primary and other relevant considerations – Protection of Australian community favours cancellation of visa –– Preferable decision is that visa be cancelled – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501(2), 501(6), 501(7)
CASES
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
SECONDARY MATERIALS
Direction [No. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
13 June 2012
THE APPLICATION
Male Tammy Teuila applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 14 March 2012, cancelling her Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
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.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstances are those specified in s 501(7)(c) and (d) of the Act, namely:
(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;
It is not disputed that Ms Teuila has been sentenced to terms of imprisonment of more than twelve months; that she been sentenced to two or more terms of imprisonment which total two years or more; or that she has a substantial criminal record under s 501(7) of the Act. Neither is it disputed that, accordingly, Ms Teuila does not pass the character test. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister has issued Direction 41[1] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act. Part A of the Direction provides directions on the application of the character test set out in s 501(6) of the Act. Part B provides directions on the primary considerations, which must be taken into account in every case,[3] and other considerations, which are to be taken into account where relevant,[4] in determining whether it is appropriate in the specific circumstances of the case to exercise the discretion in s 501(2) of the Act.
[1] Direction [no.41] – Visa refusal and cancellation under s501, dated 3 June 2009, commenced on 15 June 2009.
[2] See s 499(2A) of the Act.
[3] See paras 9 and 10 of the Direction.
[4] See paras 9 and 11 of the Direction.
The objectives of the Act are set out in para 5.1 of the Direction, which reads:
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.
The following matters are stated in the Direction by way of “General Guidance”:
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.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
…
Paragraph 10 of the Direction sets out the primary considerations as follows:
(1) …
(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).
It is common ground that non-refoulement obligations do not arise in this matter.
Paragraph 11 of the Direction sets out the other matters which, if relevant, must be considered. These are not primary considerations and, generally, should be given less weight than that given to primary considerations.[5] Of potential relevance in this matter are:
·“family ties, the nature and extent of any relationships” (para 11(3)(a));
·“the extent of disruption to the person’s family” (para 11(3)(a)(i));
·“a genuine marital relationship (de jure or de facto)” (para 11(3)(a)(ii));
·“any links to the country to which [Ms Teuila] would be removed” (para 11(3)(d));
·“hardship likely to be experienced by [Ms Teuila] or [her] immediate family members lawfully resident in Australia” (para 11(3)(e));
·level of education and efforts made to increase employment capacity and to make, thereby, a positive contribution to the Australian community (para 11(3)f)); and
·“whether [Ms Teuila] has been formally advised in the past by an officer of the [respondent] about conduct that brought [her] within the deportation provisions or the character provisions of the Act” (para 11(3)(g)).
EVIDENCE
[5] See paras 11(1) and (2) of the Direction.
Ms Teuila
Ms Teuila was born in New Zealand on 12 January 1991. She came to Australia with her parents and three siblings on 21 December 2004. Ms Teuila was almost 14 years of age at that time. She returned to New Zealand with her parents from 9 September 2005 until 9 October 2005 and from 3 December 2005 until 11 June 2006. She has been in Australia since then. Those trips to New Zealand were for the purposes of arranging certain family business and settling the renovation of her parents’ house which they own in Auckland. Ms Teuila gave birth to her son, Ezekiel, on 8 October 2010 in Australia and has had no dealings with his father since the birth. Ms Teuila said that the father was an Australia citizen. Ms Teuila’s relatives in Australia include 13 uncles/aunts, 18 nieces/nephews and 20 cousins. Her relatives in New Zealand include 10 uncles/aunts, 14 or 15 nieces/nephews and 18 cousins. Her parents and siblings live in Mt Isa and they have been caring for Ezekiel, in a voluntary arrangement, since Ms Teuila was imprisoned in October 2011. Ms Teuila’s evidence was that Ezekiel is being well cared for by her parents and that he is doing well in their care. She described limited contact arrangements with her relatives in New Zealand. Ms Teuila advised that, in the event that her visa is cancelled, she would take Ezekiel back to New Zealand with her.
Ms Teuila left school during year 12 and has been variously employed in customer services with KFC and McDonalds, in telemarketing with Bartercard and as a sales representative with Avon. During imprisonment, Ms Teuila has completed courses in first aid, basic health care, computer usage, obtaining a white card for construction work and in rehabilitation including the “Getting SMART” program. When released on parole in late June 2012, she hopes to do training in hairdressing and beauty care. She would like to gain employment and has contacted the Salvation Army for assistance in finding work after her release. As at the hearing date, no specific employment prospects have emerged.
In statements, dated 5 February 2012 and 18 May 2012, Ms Teuila wrote that removal to New Zealand would be detrimental to her and Ezekiel as it would deprive them of the close family contact that she would need to assist her in remaining free of further offences. She described Australia as her home. She believed that the programs she has completed in prison have helped her to understand her problems with alcohol and violence and felt that she was now better placed to make decisions about her life. In her evidence, Ms Teuila said that she was still young when she committed the offences and was very remorseful for the harm that she had inflicted on the victims of her assaults. She believed that one of her problems had been getting involved with the “wrong crowd” and said that, on release, she would move to Mt Isa with her parents and break off her association with her former friends.
Other evidence
There were no statements in evidence from members of Ms Teuila’s family or her friends.
A statement from the Queensland Police Service set out Ms Teuila’s history of involvement with Queensland courts as follows:
Court
Offence
Date
Penalty
Beenleigh Magistrates Court on 20 March 2008
Unauthorised dealing with shop goods
28 February 2008
Fine
Beenleigh Magistrates Court on 2 June 2008
Unauthorised dealing with shop goods
16 May 2008
Fine
Beenleigh Magistrates Court on 24 October 2008
Wilful damage by graffiti
Wilful damage
Wilful damage
Wilful damage
Assault occasioning bodily harm
20 May 2008
20 May 2008
20 May 2008
20 May 2008
7 June 2008
Probation and community service
Brisbane Magistrates Court on 26 June 2009
Commit public nuisance
5 June 2009
Fine
Brisbane Magistrates Court on 16 July 2009
Failure to appear in accordance with undertaking
26 June 2009
-
Brisbane Magistrates Court on 31 July 2009
Contravene direction or requirement
4 July 2009
Fine
Beenleigh Magistrates Court on 21 August 2009
Stealing
Contravene direction or requirement
6 August 2009
6 August 2009
Recognisance
Brisbane Magistrates Court 19 November 2009
Breach of bail condition
Between 9 and 19 October 2009
Fine
Mt Isa Magistrates Court on 10 February 2010
Failure to appear in accordance with undertaking
Failure to appear in accordance with undertaking
18 January 2010
1 February 2010
-
-
Beenleigh Magistrates Court on 10 June 2011
Failure to appear in accordance with undertaking
Breach of bail condition
3 June 2011
3 June 2011
Fine
Fine
Brisbane Magistrates Court on 24 June 2011
Failure to appear in accordance with undertaking
Failure to appear in accordance with undertaking
20 September 2010
15 September 2010
Fine
Fine
Brisbane Magistrates Court on 19 July 2011
Breach of probation order and breach of community service
Commit public nuisance
Commit public nuisance
Possess tainted property
breach of bail
Unauthorised dealing with shop goods
Contravene direction or requirement
Unauthorised dealing with shop goods
Contravene direction or requirement
Contravene direction or requirement
re order imposed on 24 October 2008
9 October c2009
26 June 2009
10 January 2010
27 December 2010
20 February 2009
8 June 2009
16 July 2009
7 August 2009
between 28 August 2009 and 4 September 2009
Recognisance and 2 months Imprisonment (suspended)
Probation
Beenleigh Magistrates Court on 11 August 2011
Breach of bail condition
Contravene direction or requirement
15 July 2011
14 July 2011
Fine
Brisbane District Court
On 20 October 2011
Assault occasioning bodily harm whilst in company (2 charges)
Wilful damage
Threatening violence by words or conduct at night
Assault occasioning bodily harm whilst in company
27 June 2008
27 June 2008
27 June 2008
9 January 2010
18 months imprisonment
12 months imprisonment
2 years imprisonment
Ms Teuila accepted as correct that record of her offences. However, she said that she had not been responsible for all of the conduct attributed to her in the offences for which she was convicted and that she just “took the blame”. Nonetheless, she agreed that she had commenced the violence in the assault of two young men on a train and damaged the musical instrument one of them carried on 27 June 2008. She also agreed that she had commenced the violence against the 14 year old girl on 9 January 2010 and assisted in pushing her in to the Brisbane River. She was unable to recall the details of an earlier assault on 7 June 2008. However, Ms Teuila did not dispute the reference to that assault by Judge Clare in sentencing her on 20 October 2011. There it was described as “a significant assault on another young woman, together with a series of offences of wilful damage”.
In sentencing Ms Teuila on 20 October 2011, Judge Clare made the following comments:[6]
[6] The Queen v Male Tammy Teuila, District Court at Brisbane, 20 October 2011.
There are two series of offences. The first involved a random pack attack on two young men who were blameless. They were passengers on a train travelling with their musical instruments. They had first been pestered by your friend, Miss Collins, for cigarettes and a telephone. She went away and then brought six other people with her. You were one of those people.
The group surrounded these two men obviously in an effort to intimidate them. You were the one that then started the physical violence. The victims had done nothing to you or to your friend. You began by yelling abuse at them, and you slapped Mr Mason in the face many times. He didn’t fight back, but his friend, Nathan Goodyear, told you to stop. That was not an unreasonable demand. Others in the group pulled Mr Goodyear down.
You were the one who punched him in the face. Others punched and pulled his hair as the men were getting off the train. Someone spat in Mr McGovern’s eye. Glass bottles were thrown at them. You maliciously smashed a guitar and then you broke a bottle and used it to threaten the two of them. It was a graphic threat. You threatened to slit their throats. Then you ran away before the police came. You were, however, identified by close-circuit television footage.
When you were questioned by the police, you made some admissions, but minimised your conduct. You attempted to justify what you had done. There is little evidence of remorse in your version of events to police.
The two victims suffered cuts and bruises. Mr McGovern had the stress of blood tests to check for infectious disease.
… the assault on Samsara, represents a second protracted, cowardly assault. This time, it was on a 14-year old girl. Once again, you demonstrated significant cruelty. Samsara had been living on the streets. She confronted your group about some property she was missing. There was an unpleasant exchange.
A few days later, you attacked her when you saw her on the street. You accused her of going to the police and you repeatedly punched her in the face. Others in your group punched and kicked her in the head and the chest and pulled her hair. When she tried to run away, you pulled her top off while others punched her and threw her into the Brisbane River. It was night-time. She was in the river and you threw rocks at her. That was incredibly dangerous behaviour. It was completely reckless to the risk to Samsara’s life. If she had drowned, you would have been guilty of her homicide. Fortunately for you, she survived and your guilt is confined to the assault occasioning bodily harm in company.
You were 18 and 19 at the time of these offences. It seems you experienced violence in your own childhood with beatings from your father. You now have a child of your own. At the time of these offences, you were mixing with groups of homeless people. You have indicated that at the time of the offences you were drunk. If that is so, you should never drink. When people get drunk, they make bad decisions. It seems when you get drunk, you get violent. The fact that you had been drinking does not make these offences any less serious. If you choose to drink, you are responsible for what you do when you are drunk.
The month before the assaults on the train, you had committed a significant assault on another young woman, together with a series of offences of wilful damage. You were charged with those offences before you attacked Mr Goodyear and Mr McGovern.
Four months after the attack on those men, you appeared in Court for other matters and you were placed on probation and community service.
The last assault, the one on Samsara, was committed about 18 months later. That is the last act of violence and it was committed about 19 months ago. It was committed in breach of the probation order as well as in breach of bail for the first assaults.
The only other matters of any significance on your criminal history are the convictions for failure to appear in relation to today’s offences. Three months ago, you were placed on probation again for a number of street offences. I have the benefit of a report from the probation authority. It seems clear that in addition to re-offending during the probation orders, you have a very poor performance record in relation to reporting and also in relation to other directions. You ignored the direction to attend drug and alcohol counselling. As your counsel concedes, you are not a suitable candidate for either probation or an intensive correction order.
I note that none of the witnesses were required for cross-examination, that you pleaded guilty to the offences today. That was after the persistent non-appearance in the Magistrates Court.
There is no question about a term of imprisonment today. The only question is how long it should be…..
You were young when you committed these offences, especially offences in counts 1 to 4. I take that into account. In recognition of your pleas of guilty parole release will be set at one-third of the period of imprisonment.
The level of violence was disturbing. Your offences are the kind that cause real fear in the community. You played a leading part in two episodes of protracted group violence. You acted in breach of probation. On the second occasion, you were in breach of bail. You have a history that includes assault. The gravity of today’s offences and your past record calls for a firm sentence to deter you and to send a message to other people like you that this kind of violence simply will not be tolerated.
A court report prepared by Beenleigh Probation and Parole on 17 October 2011 was in evidence. It set out a summary of Ms Teuila’s offences and noted that, though she had been directed to attend certain courses, she had failed to do so. The courses included alcohol and drug counselling. The report concluded that Ms Teuila lacked motivation to comply with court orders and recommended that she not be given any further community based orders.
A prison record report was completed by Queensland Corrective Services on 25 January 2012 in relation to her activities while in custody. It noted that Ms Teuila had completed a first aid course and was undertaking the “Getting SMART” course. It noted that file reports showed that her “punctuality, participation, motivation and attitude to staff and peers were rated as very good”.
SUBMISSIONS
Ms Teuila submitted that her visa should not be cancelled because she had learned a lesson from her imprisonment. She submitted that she had come to realise the seriousness of her conduct and regretted it. She referred to the people she had associated with previously and said that she would not be in contact with them on release from prison as she would be moving to Mt Isa to be with her son and her parents. She said that she would comply with the terms of the probation order when she was released from custody. She said that she would take Ezekiel with her if she was required to return to New Zealand and submitted that it would be difficult for her and Ezekiel to live there as they would be remote from the assistance available to them in Australia from her immediate family and from her other relatives.
For the respondent, Mr Nick Swann submitted that the overarching objective of the Direction was the protection of the Australian community. He submitted that, in Ms Teuila’s case, this would be achieved by affirming the deportation decision. He submitted that Ms Teuila’s history of offences, which involved violence and the many convictions associated with non-compliance with various forms of court orders, identified disrespect by her for authority and pointed to the likelihood of repetition of her offending. While noting that Ms Teuila arrived in Australia in December 2004, at almost 14 years of age, he also noted that she had returned with her parents, for some seven months, to New Zealand. He submitted that this meant that she had spent her formative years in New Zealand rather than Australia. He also noted that Ms Teuila’s serious criminal behaviour commenced in June 2008 when she was still a juvenile and only three and a half years after first arriving in Australia.
Mr Swann noted that, if deported, Ms Teuila intended to take her son with her. He acknowledged that Ms Teuila had extended family in Australia but submitted that her parents would be able to maintain contact with Ms Teuila and Ezekiel by use of electronic means in the same manner as they currently do. He also submitted that she would be able to obtain assistance from the members of her extended family in New Zealand. Mr Swann submitted that a consideration of all of the relevant factors pointed to the need to affirm the decision under review.
CONSIDERATION
Primary consideration (a): Protection of the Australian community
Under para 10.1 of the Direction, due consideration is to be given to the objectives set out in para 5(1) of the Direction[7] and to the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay. These include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.
[7] See para 6 (above).
In assessing the seriousness and nature of the relevant conduct, para 10.1.1(1) of the Direction provides:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
Paragraph 10.1.1(2) of the Direction lists “examples of offences and conduct that are considered serious”, including, in so far as relevant:
…
(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
(e) robbery[8];and
…
(m) serious theft.
[8] Robbery is defined in the note to para 10.1.1(2) as “the direct taking of property (including money) from a person (victim) through force, threat or intimidation”.
Paragraphs 10.1.1(3) and 10.1.1(4) of the Direction relevantly provide:
(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
…
In assessing the risk that Ms Teuila’s conduct may be repeated, para 10.1.2 of the Direction provides:
(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
The offences of assault committed by Ms Teuila fall within para 10.1.1(2) of the Direction. While not charged with “robbery”, her conduct in relation to the guitar belonging to the young man on the train meets the definition of that term in the note to para 10.1.1(2) of the Direction.[9] While expressing remorse for her conduct, Ms Teuila nonetheless sought to minimise her role in the offences inflicted on the victims in June 2008 and January 2010 by indicating that, though she did personally engage in some of the alleged conduct, she simply pleaded guilty and just “took the blame”. The assaults against the two young men on the train and against the 14 year old girl occurred on 27 June 2008 and 9 January 2010, respectively. Judge Clare referred to an earlier assault, committed on 7 June 2008, for which Ms Teuila was convicted in the Magistrates Court on 24 October 2008. While Ms Teuila was unable to recall the details of that earlier assault, she did not dispute the reference to it by Judge Clare as a significant assault on another young woman. Her record shows that it resulted in a non-custodial sentence. However, the first assault was a “significant” one and it is clear that the subsequent assaults were particularly violent in nature. This was reflected in the comments of Judge Clare that the level of violence was “disturbing” and of a nature “that cause real fear in the community”. It was also noted that Ms Teuila committed these serious offences in breach of probation orders and in breach of bail. The assaults of the men on the train occurred only 20 days after the first assault dealt with in the Magistrates Court. Ms Teuila’s criminal conduct continued some 19 months later with the assault occasioning bodily harm of the girl, who was vulnerable because of her age and because Ms Teuila was acting in company when the girl was thrown into the river. Over that period, Ms Teuila also committed property offences of wilful damage and dishonesty, including stealing and unauthorised dealing with shop goods.
[9] See note 8 above.
Ms Teuila demonstrated a propensity to repeat her criminal conduct throughout the period from February 2008 until January 2010. Significantly, in addition to the serious offences against the person, she demonstrated a willingness to ignore orders imposed upon her by the courts; these include breaches of probation, community service and bail conditions, failures to appear in accordance with undertakings and contraventions of directions or requirements. Her evidence is that if her visa is not cancelled, she will serve her probation period in Mt Isa. I note that convictions for failing to appear in accordance with undertakings have also been recorded in the Mt Isa Magistrates Court. While her prison record report suggests a level of rehabilitation, she failed to complete programs directed for her, including one in relation to alcohol usage, before she was placed in custody. I am satisfied that her history of defying court orders is such that it is probable that, once released from the constraints imposed by her custody, she will continue in that manner. In that regard, I have noted that the Court Report recommended that she was unsuitable for community based orders. It is also significant that no independent statements have been provided by Ms Teuila to support her contention that she would not re-offend on release from custody.
I am satisfied, having regard to the matters listed in paras 10.1.1 and 10.1.2 of the Direction, that Ms Teuila’s conduct was of a serious nature and that there is a high risk of her re-offending when she is discharged from her present term of imprisonment.
Primary consideration (b): Whether Ms Teuila was a minor when she began living in Australia
For this consideration, para 10.2 of the Direction reads:
(1) If the person was a minor[10] when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.
[10] A minor is a person who is less than 18 years of age: see para 6(1) of the Direction and s 5(1) of the Act.
Ms Teuila was 13 years and 11 months old when she arrived in Australia in December 2004. She spent more than seven months back in New Zealand in 2005/06. She was a minor until January 2009 and, by then, had spent approximately three and a half years in Australia and fourteen and a half hears in New Zealand. I am satisfied that the majority of her formative years were spent in New Zealand rather than Australia and that the level of her ties and linkages with Australia were diminished for that reason.
Primary consideration (c): The length of time that Ms Teuila has been ordinarily resident in Australia prior to engaging in criminal activity
Paragraph 10.3(1) of the Direction reads:
(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.
The first offence with which Ms Teuila was charged occurred in February 2008 when she had just turned 17 years of age. Taking account of her return to New Zealand in 2005/06, she had spent a little more than two and a half years in Australia before she committed her first offence. That is well short of the 10 year period referred to in para 10.3(1) of the Direction.[11]
[11] See Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [23] per Rares J.
Primary consideration (d): Relevant international obligations
Paragraph 10(1)(d) of the Direction refers to “relevant international obligations” and para 10.4(1) of the Direction provides that, “if there is a child in Australia who is potentially affected by a visa cancellation decision, decision-makers must have regard to the best interests of the child”. In so far as relevant, para 10.4.1 of the Direction reads:
(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
...
(4) Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
In considering the best interests of the child, para 10.4.1(5) sets out the following factors:
(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c) the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;
(d) the child’s age;
(e) whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f) the likely effect that any separation from the person would have on the child;
(g) the existence of other persons who already fulfil a parental role in relation to the child;
(h) the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i) the time that the child has spent in Australia;
(j) any Court orders relating to parental access and care arrangements;
(k) any known wishes expressed by the child;
(l) whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m) the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, education or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.
While the best interests of Ezekiel are that he remains with his mother that is a choice for Ms Teuila in consultation with her family members. If her visa is cancelled, Ms Teuila’s intention is that Ezekiel would return to New Zealand with her. There is no evidence before me of the circumstances in which the child is being cared for by his grandparents apart from Ms Teuila’s reference to being satisfied that he is doing well in their care. He is currently some 20 months old and Ms Teuila cared for him for his first 12 months or so. I have noted the apparent unwillingness of his father to be involved in parenting him. Ms Teuila’s evidence was that the father was an Australia citizen and Ezekiel may well be Australia citizen on that basis. However, there is no independent evidence before me of the father’s citizenship status.
Although there is no evidence before me on the matter, it would seem that Ms Teuila and Ezekiel may have some difficulty adjusting to a new family arrangement in New Zealand, but, as submitted by Mr Swann, there are means available for the grandparents, and for Ms Teuila, to maintain her own and Ezekiel’s contact with them. There is evidence that there are relatives of Ms Teuila in both Australia and New Zealand, including uncles, aunts and cousins, but there is no evidence from the relatives in either country as to their support for Ms Teuila or Ezekiel.
Other considerations
I have identified the other relevant considerations in para 11(3) of the Direction to be taken into account in Ms Teuila’s situation. These are:
·“family ties, the nature and extent of any relationships” (para 11(3)(a));
·“the extent of disruption to the person’s family” (para 11(3)(a)(i));
·“a genuine marital relationship (de jure or de facto)” (para 11(3)(a)(ii));
·“any links to the country to which Ms Teuila would be removed” (para 11(3)(d));
·“hardship likely to be experienced by [Ms Teuila] or [her] immediate family members lawfully resident in Australia” (para 11(3)(e));
·level of education and efforts made to increase employment capacity and to make, thereby, a positive contribution to the Australian community (para 11(3)f)); and
·“whether [Ms Teuila] has been formally advised in the past by an officer of the [respondent] about conduct that brought [her]within the deportation provisions or the character provisions of the Act (para 11(3)g))
Cancellation of Ms Teuila’s visa will involve some disruption to her family but there is no evidence of a marital relationship between Ms Teuila and Ezekiel’s father. Clearly, Ms Teuila’s contact with her parents and son has already been disrupted due to her custodial sentence. The major disruption on Ms Teuila’s return to New Zealand will be between Ezekiel and his grandparents. Ezekiel has lived with them since Ms Teuila was imprisoned. Again, I note that no evidence has been provided by them but there would appear to be no obstacle to communication by telephone, other electronic means and the prospect of travel by the grandparents to New Zealand from time to time.
Paragraph 11(3)(d) of the Direction requires reference to Ms Teuila’s links to New Zealand. It identifies situations where the person deported has no significant familial ties or support in that country. As noted above, there is evidence that there are relatives of Ms Teuila in both Australia and New Zealand including uncles, aunts and cousins but there is no evidence from the relatives in either country as to their support for Ms Teuila or Ezekiel.
Paragraph 11(3)(e) of the Direction refers to hardship likely to be experienced by Ms Teuila or her immediate family members lawfully resident in Australia in the event of her deportation. While Ms Teuila described herself as not being close to her relatives in New Zealand, there is no evidence before me which identifies any level of dependence on her by her extended family members in Australia or by her on them.
Paragraph 11(3)(f) of the Direction refers to education levels. There is no evidence that Ms Teuila has undertaken any formal education programs since leaving school but she has engaged in forms of employment which would have equivalence in New Zealand. She has expressed a desire to undertake training in hairdressing and beauty care. No specific courses in Australia were identified by her and, again, it is likely that these options can be pursued in New Zealand.
It was acknowledged by Mr Swann that Ms Teuila was not formally advised by the respondent about conduct that brought her within the deportation provisions or the character provisions of the Act. This identified a consideration in para 11(3)(g) of the Direction.
CONCLUSION
Having considered the primary considerations and the other relevant considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether or not those considerations, on balance, favour cancellation or non-cancellation, of the visa.[12]
[12] See Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the primary considerations, I am satisfied that the protection of the Australian community is the most significant in Ms Teuila’s case. The nature and frequency of Ms Teuila’s criminal conduct, and the likelihood of her re-offending, is in conflict with an objective of the Act, that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[13] This consideration weighs heavily in favour of cancellation of the visa.
[13] See para 5.1 of the Direction (set out in para 6 above).
Ms Teuila’s criminal conduct commenced when she was still a minor in February 2008 and continued until January 2010 when she was an adult. The majority of her formative years were not spent in Australia and this limits the extent to which her ties and linkages to Australia developed in comparison with those of New Zealand. Her three convictions in 2008 were for offences committed as a minor and, taking account of her absence from Australia for seven months in 2005/06, she had spent barely two and a half years in Australia before her first offence. I am satisfied that primary considerations (b) and (c) of para 10(1) of the Direction weigh in favour of cancellation of the visa.
The fourth primary consideration pertains to the best interests of the child and is more finely balanced than are the other three considerations. Ms Teuila will not be separated from Ezekiel if deported. He will be separated from his grandparents who have cared for him since Ms Teuila has been in custody. As I have indicated above, means of communication and contact between them is available. While Ms Teuila said that she intended to move to Mt Isa on leaving prison, contact in the present form between Ezekiel and his grandparents will only continue while Ms Teuila remains resident there. She also has relatives in New Zealand to turn to for assistance in adjusting to the return to life in New Zealand with her son. I am satisfied that this factor weighs, at best, neutrally in relation to deportation.
As regards the other considerations relevant under para 11 of the Direction, Ms Teuila was provided no warning that her conduct may activate the deportation or character provisions of the Act. That is not surprising in that her conviction on 20 October 2011, which provided the basis for her visa cancellation, has been followed immediately by detention in custody. Reference has been made above to her links with New Zealand, the effect of deportation on family members and to her employment prospects. I am satisfied that these factors weigh no higher than neutrally on the issue of visa cancellation from Ms Teuila’s perspective.
I am satisfied that the primary considerations weigh in favour of cancellation of the visa and that this clearly outweighs all other relevant considerations in this case which, at best, are neutral to the extent that they impact on the issue of Ms Teuila’s deportation. I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
.....................[Sgd]...................................
Associate
Dated 13 June 2012
Date(s) of hearing 1 June 2012 Applicant In Person Solicitors for the Respondent Sparke Helmore
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