Meteka and Minister for Immigration and Citizenship

[2011] AATA 255

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 255

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0340

GENERAL ADMINISTRATIVE DIVISION		)
Re		Clarke Meteka

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date18 April 2011

PlaceSydney

Decision The decision under review is SET ASIDE.

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

M D Allen, Senior Member  

CATCHWORDS

IMMIGRATION & CITIZENSHIP: Deportation of non-citizen. Application of Direction 41 under the Migration Act 1958. Evidence of genuine attempts at rehabilitation. No prior warnings of likelihood of cancellation of visa. Decision under review set aside.

LEGISLATION

Migration Act 1958, S499, 501.

CASES

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81.

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198

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

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

REASONS FOR DECISION

18 April 2011 M D Allen, Senior Member            

1.      By application made 1 February 2011 the Applicant sought review of a decision by a delegate of the Respondent to cancel his residency visa on the grounds that he did not pass the character test.

2. Subsection 501(2) of the Migration Act 1958 (“MA”) states:

“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. Whereas subsection 501(6) MA states:

“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

(b)  the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; 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

(ii)  harass, molest, intimidate or stalk another person in Australia; or

(iii)  vilify a segment of the Australian community; or

(iv)  incite discord in the Australian community or in a segment of that community; or

(v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.”

4. “Substantial Criminal Record” is defined by paragraph 501(7)(c) MA as where a 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 I am required, pursuant to section 499 MA, to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.

6.      At the time the Minster’s delegate made the decision in this matter and currently the Ministerial Direction in force is No.41.

7.      Direction No.41 states as it’s objective:

“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 community’s more vulnerable members, including minors, the elderly and the disabled.”

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

“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 may cause to the Australian Community;

(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 was conceded in these proceedings that the Applicant failed to meet the character test.  That concession was properly made considering the offences committed by the Applicant.  On 3 October 2008 McGuire DCJ, in sentencing the Applicant to three years and five months imprisonment with a non-parole period of two years and five months for the crime of malicious wounding in company, said of the Applicant’s prior criminal history:

“Aged twenty-six, the offender has a serious criminal history. In 1999, he was convicted of aggravated robbery and was subjected to a control order in the Children’s Court.  Further offences were dealt with in the Children’s Court attracting probation orders and community service orders.  On 21 March 2003, he was sentenced to imprisonment for three years for aggravated robbery.  On 1 July 2005, he was sentenced to imprisonment for two offences of demand money with intent to steal.  This attracted concurrent sentences of two years non-parole and a parole period of fifteen months.”

11.     The Primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction 41 are:-

“(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 a person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;

(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);

(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).”

PROTECTION OF THE AUSTRALIAN COMMUNITY

12.     Paragraph 10.1 of Direction No.41 reads inter alia:

“(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of the 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.     Whereas paragraph 10.1.1 reads inter alia:

“(1) 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.

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

…

(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);

(e)  robbery;…”

As stated above the Applicant has been convicted of aggravated robbery (twice), demanding property by force with the intent to steal and malicious wounding in company.

14.     Paragraph 10.1.1(3) Direction No.41 also provides that due regard must be given to the extent of the person’s criminal record, including the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  The Applicant’s record of offences starts in 1997 when as a juvenile he was charged with robbery while armed with a dangerous weapon and then continues with a litany of offences including aggravated robbery, robbery, and assault occasioning actual bodily harm, up until he was sentenced to imprisonment for the third time on 3 October 2008.

15.     McGuire DCJ, in sentencing the Applicant on 3 October 2008, said:

“The probation and parole reports indicate that the offender has persistently failed to cooperate with officers of that service. …It was remarked that he had no intention of changing his habits. Further, that he had indicated to the probation and parole officers that he had no remorse with regard to his victim.”  

But added later in his sentencing remarks after noting the birth of his child and hearing evidence from his then partner:

“With grave reservations I am prepared to accept that there are some prospects of rehabilitation”.

16.     In evidence to me the Applicant maintained that it was only after his last offence that he had decided that he had had enough of being in and out of custody and had sought help.  As I gathered from his evidence the birth of his son had brought about a change in the way he regarded the world.

17.     This change in attitude following the birth of his son was confirmed by his former partner (and the mother of his child), Ms Tauai, and his sister Ms Ngamata Meteka.

18.     Mr Bradford Riggott is the Applicant’s half-brother.  He gave evidence that he had noticed a change in the Applicant’s attitude since he had been in gaol this last time.  He noted that the Applicant used to swear a lot and talk a lot of rubbish but now sounds different and is more positive.  Apparently Mr Riggott has approached his employer and there is the possibility of the Applicant gaining employment with that employer.

19.     Mr William John Taylor is a clinical psychologist who carried out a psychological assessment of the Applicant on 22 February 2011.  In his report of 27 February 2011 he diagnosed the Applicant as having a personality disorder with antisocial characteristics.

20.     Addressing the Applicant’s personality, Mr Taylor’s report states, inter alia:

“Substance Abuse

His results indicate that he has an above-average predisposition to engage in substance abuse.

Impulse Control

Mr Meteka has inadequate control over drive and impulse.  This problem would be exacerbated if he has engaged in substance abuse as his controls would then be weakened and his judgement would be impaired. He then would be more likely to act out in an impulsive and poorly modulated manner.

Antisocial Tendencies

His results on the tests administered indicate that he has significant antisocial characteristics in his personality adjustment. …He was also shown to have a tendency to identify with antisocial associates

….

General Recidivism

The results of actuarial analyses indicate that Mr Meteka has a moderate to high-moderate risk of general recidivism.”

More significantly, Mr Taylor’s report states that after testing:

“His results indicate that he has a moderate to high-moderate risk of violent recidivism”.

THE RISK THAT THE CONDUCT MIGHT BE REPEATED

21.     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:

“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to re-offend…and even if the risk of recidivism is not high the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.” (Authorities omitted).   

22.     As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198, 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.

23.     Compare the remarks of Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 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”.

24.     In Minister for Immigration and Citizenship v Obele [2010] FCA 1445, Katzman J said of the risk of re offending that paragraphs 5.2(2) and 10.1(2) of Direction No.41 led to a requirement that the potential harm to the community is to be assessed in the light of both the probability of the harm occurring and the nature of that harm.

25.     In having regard to the Applicant’s criminal history I note that on 29 January 1998 the Applicant failed to answer to his bail.  On 18 September 1998 he was charged with failure to comply with a direction of the Probation and Parole Service.  On 4 March 2001 he was charged with a breach of probation.

26.     In sentencing the Applicant on the count of demanding property by force with intent to steal, Gibson DCJ noted that the Applicant was on parole at the time of the offence.

27.     Likewise, McGuire DCJ noted that at the time of committing the offence of malicious wounding the Applicant was on parole.

WAS THE APPLICANT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

28.     The Applicant arrived in Australia when he was aged three years.  Apart from two trips back to the Cook Islands when he was an infant he has not been out of Australia since.  This factor does weigh in the Applicant’s favour. 

THE LENGTH OF TIME RESIDENT IN AUSTRALIA BEFORE ENGAGING IN CRIMINAL CONDUCT

29.     The Applicant is now aged 28 and has resided in Australia since age three.  He commenced his criminal conduct in adolescence, and was expelled from his high school for fighting.  For all practical purposes the Applicant has been resident in Australia for all of his life and I believe this consideration is, considering the time he commenced his antisocial activities, to be a neutral factor in considering the Applicant’s case.

INTERNATIONAL OBLIGATIONS

30.     The Applicant is the father of a young child, and although he has been in custody he has had regular contact with the child and the evidence is that there is a very deep bond between them.

31.     Although not children of whom the Applicant is the biological father, there was evidence that he has the role of a father figure to his two nieces and the daughter of his former partner.  These children, as well as the Applicant’s son, would be detrimentally affected by the Applicant’s visa being cancelled.

32.     I find therefore that there are children whose best interests would be served by permitting the Applicant to remain in Australia.

OTHER CONSIDERATIONS:

33.     Direction 41 lists at paragraph 11(3) seven other non-primary considerations which might be taken into account in considering whether to cancel a visa.

34.     I do not intend to discuss these considerations in any great detail except to say that I do not accept the Applicant’s protestations that he has no real contact with his father in New Zealand.  In his sentencing remarks on 1 July 2005, Gibson DCJ said: 

“As I understand the evidence he is anxious he says when released to join his father who is in New Zealand.”

35. A non primary consideration to be taken into account is whether the Applicant has been formally advised in the past about conduct that brought him within the deportation provisions of the Migration Act 1958.

36.     A letter advising the Applicant of those provisions was forwarded to him dated 15 May 2007 but was not delivered to him at that time.  The result is that the Applicant was never warned of the results of his offending behaviour until the letter of May 2007 was brought to his attention whilst in custody following his most recent offence.

37.     Whilst in custody, the Applicant entered into a rehabilitation program known as the Ngara Nura Therapeutic Community. The program was explained by a counsellor working in the program, Mr Allder:

“The Ngara Nura Program is a six month intensive program within custody which works with offenders who have a history of drug and alcohol addiction.  In particular, with that drug and alcohol addiction is related to criminal activity or offending behaviour, and the program is a preparatory program to prepare inmates for living a different life when they are released from the custodial environment.”

38.     Mr Allder was very positive in his assessment of the Applicant and the manner in which he had adapted to the program.  For example at Transcript page 5 he said:

“As Mr Meteka progressed through the program he developed and grew more than any other participant in this group and I would say, in my two and a half years in Corrective Services, more than any other participant I have seen.”

He also said of the Applicant’s involvement in the program:

“Mr Meteka demonstrated a willingness and a desire to change that most inmates do not.  In the five months that I worked with Mr Meteka he came across as a very honest man, and with all of the experience and training that I have, I truly believed he had no motivation to try and make himself look good in front of him(sic).  There was no reason to do that, and a great number of inmates don’t. The style of group therapy that we run in psycho-educational is that we would prefer honesty.  So, even if group members are considering to continue a life of offending, or of using drugs or alcohol, we run a group where people openly say that, because we feel that without honesty we can’t get anywhere with them. So, Mr Meteka had no motivation – there was no reason for him to be untruthful with this, and I found him to be very truthful and focussed on his desire to lead a life – a lawful life, to not re-offend and to stay away from situations that had previously brought difficulty, certain people and places.”

39.     Of particular relevance to my mind was Mr Allder’s reply in cross examination when asked why he did not think attendance at Alcoholics Anonymous and Ngara Nura meetings should be a condition of the Applicant’s parole.  He said:

“Because he demonstrated to me over those five months his motivation to continue a journey of recovery.  And the meetings, whether both the AA and the Ngara Nura community meetings, would form a part of that. But also he was very – he had a very high status in the Ngara Nura community. He was thought of – I am trying to think of a better word, better than ‘Top Bloke’, but because of his honesty, because of his forthrightness, he was a very important member of the community, from everything from sporting equipment; if something was stolen or lost he would get it back; if other inmates were doing the wrong thing, he would speak to them, they would come into line.  So I would see him coming to the community meetings off his own bat because he was respected and liked.”

I also note that the Applicant has professed a desire to be involved further in the Ngara Nura program and to return as a ‘mentor’.

40.     I also consider that there was much force in Mr Allder’s statement that the proposed visa cancellation had acted as a “wake up call” to the Applicant.

41.     Para 5.2 of Direction 41 states:

“(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.”

42.     Having regard to the Applicant’s criminal history and the report of Mr Taylor, I would be satisfied that there is a real risk that the Applicant would commit further offences in the future and further that there is a real risk that such offences would be attended by violence.

43.     The evidence of Mr Allder however was impressive and I find that that evidence negates the risk to the Australian community outweighing the interests of the Applicant’s child to have his father present in Australia.

44.     This factor combined with the appropriateness of the Australian community accepting more risk given the Applicant’s absorption into the Australian community persuades me the best or preferable decision in this matter is to set aside the decision under review.

45.     In setting aside the decision under review I note that I have real reservations and that my decision is possibly more the triumph of hope over reality.  The Applicant should be in no doubt that should he re-offend he cannot expect such consideration in the future.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ............[sgd]...............................
  K. Lynch, Associate

Dates of Hearing   31 March and 1 April 2011
Date of Decision   18 April 2011
Counsel for the Applicant           Ms A Rao
Solicitor for the Applicant            Legal Aid Commission
Solicitor for the Respondent       Ms J Cumming, Clayton Utz