Moniti VEA and Minister for Immigration and Citizenship

[2013] AATA 14

[2013] AATA 14 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4947
Re	Moniti VEA
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	15 January 2013
Place	Sydney

Decision Summary

The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Vea’s visa.

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

Deputy President RP Handley

CATCHWORDS

IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations – Decision under review set aside and substituted

LEGISLATION

Family Violence Protection Act 2008 (Vic)

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction [no. 55] - Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Vea has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

   BACKGROUND

2. Mr Vea was born in Tonga in February 1982 and is now aged 30. He is a New Zealand citizen.  Mr Vea moved to New Zealand with his parents at the age of three. However, his parents separated when he was aged seven and he was sent back to Tonga where he lived with his grandparents and other family members. Mr Vea arrived in Australia with his sister on 8 December 1995, at the age of 13, and was granted a Class TY Subclass 444 Special Category (Temporary) visa. He has not departed Australia since. Initially, Mr Vea went to live with his mother and stepfather in Sydney but later moved to Melbourne to live with his father and stepmother.

3. Mr Vea’s parents and his 11 siblings (of whom five are half-siblings by his mother’s second marriage) – he is the second eldest – all live in Australia. Mr Vea has three children by a former partner (Ms W) who are aged six, four and two. Ms W also has two older children from a previous relationship whom Mr Vea has been involved in parenting.

4. Mr Vea was first convicted of a criminal offence at the age of 17. He has the convictions set out below, the most serious of which, on 16 March 2011, in respect of conduct on 30 June 2010, was for aggravated burglary at Ms W’s house, recklessly causing serious injury to Ms W and assaulting Ms W’s mother who was also present. Mr Vea was sentenced to a total of 30 months imprisonment with a non-parole period of 22 months for these offences. His criminal record is as follows:

Date of Conviction	Offence	Punishment
12 March 1999	Theft of a motor vehicle ·             ·           Intentionally damage property	Detention in a Youth Training Centre for 2 months; licence cancelled for 6 months ·           Detention in a Youth Training Centre for 21 days
29 June 1999	Possess prescribed weapon without exemption Theft from motor vehicle Attempt theft of a motor vehicle Go equipped to steal/cheat ·           State false name when requested	For each charge: detention in a Youth Training Centre for 5 days
18 August 2000	Robbery in company	Periodic detention for 21 months with a non-parole period of 9 months ending on 24 May 2001. (Mr Vea absconded from parole in late May 2001 and the periodic detention order was cancelled on 11 July 2001. He served the remainder of his sentence in 2000/2001 - see below).
28 August 2001	Theft of a motor vehicle Use heroin Possess heroin	Failed to appear. Warrant issued.
13 January 2005	Failure to answer bail. Re 28 August 2001: Theft of a motor vehicle Use of drug of dependence Possess drug of dependence	On all charges: without conviction, adjourned to be of good behaviour to 12 April 2005.
12 April 2005	Re 28 August 2001: Theft of motor vehicle Possess drug of dependence Use other drug of dependence Failure to answer bail	Dismissed Dismissed Compliance with bond/undertaking Compliance with bond/undertaking
24 April 2007	Intentionally cause injury Theft Intentionally damage property ·           Unlawful assault	On all charges: imprisonment 6 months concurrent. Sentence partially suspended after serving 1 month on entering into bond to be of good behaviour.
16 March 2011	Aggravated burglary Reckless cause serious injury ·           Assault	Imprisonment 30 months Imprisonment 12 months. 6 months of sentence concurrent Imprisonment 6 months. 3 months of sentence concurrent ·           (The total effective sentence for these 3 convictions was 3 years and 3 months with a non-parole period of 22 months.)

1. Mr Vea was released from Fulham Correctional Centre in Victoria on 2 May 2012 but was immediately detained and extradited to NSW to serve the remainder of his sentence for his conviction of the offence of ‘robbery in company’ (18 August 2000) as a result of his absconding to Victoria in late May 2001. Mr Vea was released from prison in NSW on 30 November 2012 and immediately taken into immigration detention at Villawood where he was detained at the time of the hearing.

2. On 22 August 2012, the Department sent Mr Vea a ‘Notice of Intention to Consider Cancellation’ of his visa, inviting him to respond. Mr Vea acknowledged receipt of this notice and responded by letter dated 3 September 2012. The Department subsequently sent him a copy of his National Police Certificate inviting a further response. He duly responded by letter dated 22 October 2012.

3. By letter dated 26 October 2012, a delegate of the Minister advised Mr Vea that his visa had been cancelled and provided him with a Statement of Reasons for the cancellation of his visa under s 501(2) of the Migration Act together with a Departmental Submission relating to his visa cancellation. On 2 November 2012, Mr Vea applied to the Tribunal for a review of this decision.

   RELEVANT LAW AND POLICY

4. Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.  Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record.  ‘Substantial criminal record’ is defined in s 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.

5. Mr Vea has been sentenced to a term of imprisonment of 12 months or more for three offences, the most serious being aggravated burglary, for which he was sentenced to 30 months imprisonment.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Vea’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 (Direction 55). Direction 55 requires the Tribunal to take into account primary considerations and other considerations relevant to the individual case. The Preamble sets out the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task. In the case of serious criminal or other misconduct, when determining the risk of future harm, the decision-maker should balance the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community (Section 2, paragraph 7(1)(b)).

6. Paragraphs 9 and 10 of Direction 55 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa. The ‘primary considerations are set out in paragraph 9(1):

   9. Primary considerations – visa holders

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

   (a) Protection of the Australian community from criminal or other serious conduct;

   (b) The strength, duration and nature of the person’s ties to Australia;

   (c) The best interests of minor children in Australia;

   (d) Whether Australia has international non-refoulement obligations to the person.

7. The ‘other considerations’, set out in paragraph 10(1) (see below), must be taken into account where relevant. Subparagraphs 8(4) and (5) state:

   (4) Primary considerations should generally be given greater weight than the other considerations.

   (5) One or more primary considerations may outweigh other primary considerations.

   PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

8. Under this heading, the Tribunal is required to give due consideration to the Government’s “Objectives”, “General Guidance”, and “Principles” set out in section 1, paragraph 6 of Direction 55 under the heading ‘Preamble’. The ‘Principles’ referred to in paragraph 6.3 that provide a framework for decision-makers in approaching their task, include the following:

   6.3(1) …Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3) …

   (4) … Australia may afford a higher level of tolerance of criminal or other serious misconduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (5) …

   (6) The length of time a non-citizen has been making a positive contribution to Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

9. Paragraph 7(1) of Direction 55 states that, informed by the principles in paragraph 6.3, a decision-maker:

   (a) …

   (b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

10. Paragraph 9.1 of Direction 55 states:

    (1)   When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2) Decision-makers should also give consideration to:

    (a) The nature and seriousness of the person’s conduct to date; and

    (b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct

11. Paragraph 9.1.1(1) of Direction 55 states:

    (1)   In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

    d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

    e)The sentence imposed by the courts for a crime or crimes;

    f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;

    g)The cumulative effect of repeated offending;

    h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);

    j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

12. As is evident from Mr Vea’s criminal history, he has committed and been convicted of serious offences involving violence. In accordance with paragraph 9.1.1(1) above, such crimes are viewed very seriously. However, he has committed only two offences of any seriousness in the past 10 years, both involving domestic violence and under the influence of alcohol. Mr Vea has not previously received a formal warning that further misconduct could lead to his visa being cancelled.

13. In his sentencing remarks on 16 March 2011, Judge Lacava of the Victorian County Court described the events leading up to Mr Vea’s arrest on 30 June 2010. When drunk, Mr Vea broke into the house where his former partner, Ms W, and her five children (two from her previous relationship) were living with her mother. He struck Ms W with an open hand and pushed her while abusing her. When her mother tried to intervene, he pushed her away.

    11. You then grabbed hold of [Ms W] and dragged her out of her bedroom and down the stairs causing her to fall. You continued to abuse her verbally whilst dragging her through the smashed glass, out of the house and down the driveway to your car which was parked on the nature strip. You pushed [Ms W] into your car. She escaped to a neighbour when you went around to the driver’s side. You did not pursue her.

    12. There are a number of aggravating features of your overall offending. You were drunk. You smashed your way into the house whilst verbally abusing [Ms W]. You pushed aside her mother … while she was trying to assist. You struck [Ms W] and dragged her outside causing injury to her. Your offending occurred whilst there were five children in the house. Even if they did not see all of your actions, they no doubt heard your abuse of their mother. Your conduct was calculated to, and did instil fear in the occupants.

14. Judge Lacava noted:

    23. When you pleaded guilty you admitted prior convictions. I consider that your prior offending between 1999 and 2005 as of little relevance here. That offending was of a kind normally associated with drug users. Relevantly here, in 2007 you were convicted in the Dandenong Magistrates’ Court of intentionally causing injury, theft, intentionally damaging property, and unlawful assault. The circumstances of that offending were not dissimilar to your offending here. Your victim there was also [Ms W]. You were given an aggregate sentence of 6 months imprisonment 5 months of which were suspended with an operational period of one year. You completed that suspended sentence without breach. But you apparently did not learn from that mistake.

    24. You have a reasonably good work history. Between 2001 and 2007 you worked for Absolute Powder Coating in a management role. Prior to this offending you were performing casual labouring work. You have provided for your children by paying child support while separated. You were good at sport playing rugby at a high level.

    25. Your relationship with [Ms W] is at the heart of this offending. You did not apparently accept that your relationship had ended. You became jealous and accused her of infidelity during and after your relationship with her. It is your inability to control your anger when intoxicated that explains but does not excuse this offending. It is the same explanation for your 2007 offending also involving her.

    26. While in custody you appear to have used your time well. You have lost weight and are alcohol free. You have enrolled but have not yet commenced an anger management course.

15. However, while noting these matters, Judge Lacava said there was “no real evidence that you are rehabilitated or committed to a full rehabilitation”. He concluded that the real test would come after Mr Vea’s release but, at the time of sentencing, “your prospects for rehabilitation must remain guarded”.

16. As Judge Lacava noted, Mr Vea’s 2007 offences also involved domestic violence in relation to Ms W when he was drunk. With regard to Mr Vea’s other convictions, as Mr Tremelling, for Mr Vea, pointed out, Mr Vea’s 2005 convictions were in relation to an incident in 2001, when Mr Vea was aged 19. They are of a relatively minor nature. Of a serious nature was Mr Vea’s conviction for ‘robbery in company’ on 18 August 2000, when he was aged 18. Mr Vea told me that he went to visit his mother in Sydney and went out with friends and got drunk. He said he cannot remember what happened. Apparently, he smashed a window, cut an artery in his arm and almost bled to death. He woke up in hospital. The Police Facts Sheet for the this incident describe the robbery of a service station in Erskineville on 4 May 2000 involving five islander males, including Mr Vea, and one female. Mr Vea smashed a glass window panel in the course of trying to escape and suffered a severe laceration to his right forearm.

17. Mr Vea was sentenced to 21 months periodic detention in respect of this offence, commencing on 25 August 2000, with a non-parole period of nine months ending on 24 May 2001. He absconded to Melbourne in late May 2001 without completing his periodic detention and served the balance of this sentence in custody at the conclusion of the imprisonment to which he was sentenced by Judge Lacava. In a statement dated 17 December 2012, Mr Vea said [para 26] he absconded from serving his periodic detention:

    … because I was still hanging out with the wrong crowd in Sydney. I was afraid I was at risk of getting into more trouble in Sydney. I owed bad people money. I felt I had to get out of Sydney to start afresh because I had only gone there for a holiday and was stuck there doing weekend detention.

18. Mr Vea returned to live with his father and stepmother in Melbourne. He said he was young, stupid, and feared for his life. He did not tell his father what had happened and heard nothing further of the consequences of the breach of his periodic detention order until he was in prison for his 2011 conviction.

19. It is relevant to record here the background to Mr Vea’s offending. As noted above, his parents separated when Mr Vea was aged seven and he was sent back to Tonga to live with his grandparents and other family members. At that time, his father drank heavily and the impression I formed was that this was a significant factor in the breakdown of the marriage. When Mr Vea moved to Sydney from Tonga at the age of 13, he went to live in Sydney with his mother who had by this time remarried. However, after being physically abused by his stepfather, Mr Vea located his father in Melbourne and moved there to live with him and his stepmother. By this time, it appears that his father had stopped drinking. His father is now a steward of the Free Wesleyan (Methodist) Church of Tonga in Victoria. Mr Vea went to school locally in Melbourne but, at the age of about 16, starting drinking and using drugs. He said that because he did not want his father to find out about his drug habit, he ran away from home and lived on the streets, where he became involved in juvenile crime to support what became a heroin addiction.

1. While still a minor, Mr Vea was convicted of a number of offences and sentenced to juvenile detention. He said that while in juvenile detention, he undertook some courses to help him get off drugs, went “cold turkey”, got off heroin, and has not used drugs since. On being released from juvenile detention, he went back to live with his father and stepmother and worked as a fencer for about 12 months. However, he continued drinking, although mainly on weekends with his friends and not at home.

2. When Mr Vea returned to Melbourne in late May 2001 after visiting his mother in Sydney (after the armed robbery and absconding from periodic detention), he resumed full-time employment, including from 2002 to 2007 as a powder coater, in the course of which his boss made him a supervisor with responsibility for opening and shutting the workplace while his boss was away. He left this employment because he became sick as a result of the effect of the work on his lungs, and he began working in the construction industry as a labourer and then as a renderer.

3. In 2003, Mr Vea met Ms W, then a single mother with two children, aged about three and one. In early 2004, Mr Vea moved in with Ms W, who was living with her mother. Mr Vea and Ms W have three children: a boy born in 2006 and girls born in 2008 and 2010. While according to Ms W’s and her mother’s evidence, Mr Vea and Ms W had a loving relationship, it was punctuated by conflict and a number of instances of domestic violence when Mr Vea was drunk. They separated on a number of occasions and later resumed living together, including after the incident involving domestic violence in 2007 which led to Mr Vea’s conviction.

4. I am satisfied from Mr Vea’s evidence and that of Ms W, her mother, Mr Vea’s parents and other family members, that Mr Vea is a loving father to his children and, prior to his imprisonment in 2010, was very much involved in their care and in providing for their financial support, even when separated from Ms W. While living with Ms W, Mr Vea also assumed parental responsibility for her two older children with whom he has a close relationship.

5. A large number of Mr Vea’s family attended the hearing and many of them provided statements or letters of support. His parents, stepmother, aunt, cousin, sister, together with Ms W and her mother, gave evidence in his support. I have no doubt that Mr Vea is part of a close-knit, large and loving family, many of whom are involved with their church which plays an important part in their lives and in that of their community.

   The risk to the Australian community should the person commit further offences or engage in other serious conduct

6. Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:

   … decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

   a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

   b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

   i.information and evidence on the risk of the person re-offending; and

   ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

7. Mr Vea said that he very much regrets what he has done and wants to turn his life around. He has been in prison and detention for nearly three years and realises that many of his problems were caused by drugs and alcohol. He has not taken drugs since about 2000 when he was released from juvenile detention and he has now been abstinent from alcohol for nearly three years, has never felt better and wants to remain like this. In his statement dated 17 December 2012, Mr Vea said “I know I can stay off alcohol because I managed to quit heroin once I made up my mind and I can do the same with alcohol”. He is aware that this is his last chance and that if he drinks again he will lose his children and his family.

8. It is worth noting at this point that I did not have concerns about Mr Vea’s credibility as Ms Buchanan, for the Respondent, submitted that I should. I found that Mr Vea was frank in talking about his life, his misconduct and the mistakes he has made. I do not accept that his inability to recollect some precise details of incidents that, in a number cases took place some years ago, should be held against him. Nor do I accept that forms completed by others as to how he answered questions about various matters should be given weight where there appears to be some ambiguity in the answers recorded, and when there is no information about the circumstances in which the questions were asked or about the professional background of the person who was asking the questions. I also do not accept that Mr Vea sought to minimise his offending behaviour or the harm he caused to Ms W. I note the evidence both Ms W and her mother provided in his support. Mr Vea’s demeanour in the hearing room indicated his feelings of shame and he, on many occasions, expressed remorse for his actions. In his statement dated 17 December 2012, he said: “[t]his is one thing I will regret for the rest of my life, that I was violent with a woman and even worse because it was in front of the kids”. I found Mr Vea a credible witness who is genuinely sorry for his actions and determined to turn his life around.

9. Mr Vea said he does not want his children to be brought up in a broken home. If he is released into the community, he is willing to do drug and alcohol and anger management courses. He confirmed this to the Victorian Parole Board. (Mr Vea’s assessment and treatment for drug and alcohol addiction and in relation to his offending behaviour are special conditions of his parole which commenced on 2 May 2012.)  He tried to do such courses while he was in prison but was told he was not suited for the drug and alcohol course and he was still on the waiting list for the anger management course when he was released. He has a close and loving family who are involved in the church and he intends to attend church with his father, with whom he will live, every Thursday and Sunday.

10. I note that Mr Vea appears to have a good prison record. There are, however, two prison charges for refusing to submit a urine sample – on 21 and 24 October 2010. The charge records show that Mr Vea requested that he see a doctor about his difficulty of producing a sample. Mr Vea said that this request was refused. He strongly denied having taken any taken any drugs while in prison.

11. Mr Vea said he has apologised to Ms W for his conduct many times. He let himself, his family and his children down and not a day goes by when he does not regret his actions. He is aware it is time for both him and Ms W to move on in their lives. He has known about Ms W’s new relationship for about seven months and is happy for her. He has spoken to her new boyfriend on the phone and has thanked him for looking after the children. (Ms W confirmed this in her evidence.)

12. The Tribunal was provided with a report dated 31 December 2012 from a Forensic Psychiatrist, Dr Thomas Oldtree Clark, who also gave evidence at the hearing. In his report, Dr Clark noted Mr Vea’s longstanding alcohol problem, which Dr Clark diagnosed as Substance Abuse Disorder. He said Mr Vea described episodes of depression related to his interpersonal problems, namely those associated with the breakup of his relationship with Ms W. Dr Clark also diagnosed Mr Vea as a suffering from “an episodic mood disorder, known as an Adjustment Disorder”, and said it was during such episodes that Mr Vea had engaged in binge drinking.

13. Dr Clark noted Mr Vea’s good work record and prospects of employment, that he has accepted the breakup of his former relationship with Ms W and that there is no possibility of resuming the relationship, and that “[h]e has accepted that his drinking behaviour is pathological and he will continue in the positive supportive pathway he has now chosen”, one of abstinence from alcohol and fulfilling his responsibilities to his children and family. Dr Clark stated that in his opinion, Mr Vea “has no characteristics of a habitual offender … [and] He does not present a risk to the Australian community as a whole”. Mr Vea is not suffering from an antisocial personality disorder which would pose such a risk.

14. Dr Clark said that Mr Vea is now more mature and past the age when a young man is most likely to be a risk to the community. While Mr Vea’s abstinence from alcohol will have to be reinforced and monitored if he is released into the community, he has “amazingly supportive” family links and presents a very low risk of re-offending.

15. Ms W told me that she has no concerns for herself if Mr Vea is permitted to remain in Australia. Indeed, her evidence was very supportive of his staying, as was that of her mother. Ms W said Mr Vea “is definitely a changed person” and is “normal” now that he is not drinking. She is in almost daily phone contact with him. She acknowledged that for a year after the 2010 incident, there was an ‘Intervention Order’ in place (made under the Family Violence Protection Act 2008 (Vic)) prohibiting contact by Mr Vea with her, her mother or her children. Ms W said Mr Vea did not breach the order and she went to court to get it lifted so that the children could see their father. She said Mr Vea’s violence towards her in the 2007 and 2010 incidents has not affected the children because they were too young at the time. Of the 2010 incident, only her second son, from her former relationship, was aware of the domestic violence; the other children were asleep. Speaking of the two older boys from this earlier relationship, Ms W’s mother said Mr Vea loved them as his own “and they in turn love and miss him also”.

16. I do, however, note that there apart from the incidents in 2007 and 2010, there are Victorian Police Incident Reports dated 4 December 2004 and 7 December 2006, recording that Police were called to Ms W’s house. On the earlier occasion, Mr Vea was drunk and is said to have grabbed Ms W around the throat causing minor red markings and to have pushed her mother. Ms W is recorded as saying she was not fearful of Mr Vea. On the later occasion, Mr Vea had attended the house to collect his property and clothing at a time when he and Ms W were separated and caused minor damage to the front door which Mr Vea fixed.  On both occasions, Mr Vea left the premises peacefully, and neither Ms W nor her mother wished any further action to be taken. When asked about these incidents, Mr Vea said he did not recall the first and was drunk at the time of the second. Referring to the incident in December 2006, he said he and Ms W got back to together about two weeks later.

17. As noted above, the Tribunal was also provided with evidence from Mr Vea’s family. They all spoke of the change they have seen in him and offered their support. His father said he will be close to his son if he is released into the community and will give him spiritual guidance. He regretted not having spent enough time with his son in the past and apologised for this. Mr Vea’s sister said that Mr Vea has told her that he is quitting alcohol and that she is confident that he can because he wants to change. Mr Vea’s aunt said she had asked her doctor to help prepare a treatment plan for Mr Vea’s rehabilitation so that he can see a psychologist for counselling. He has told his aunt that he has learned from his mistakes, has said how selfish he was and that he will not touch alcohol in the future. Mr Vea’s stepmother said that she can tell from the way that he talks to her that he has changed. She will assist him in reconnecting with their church.  Ms W’s mother said she had visited Mr Vea in prison and has spoken with him regularly on the phone, most recently, yesterday. He has acknowledged that what he did was wrong and has said he will not drink again.

18. Mr Vea’s cousin, who also gave evidence, said Mr Vea has told her he will quit drinking. Currently, they talk on the phone almost daily. Her husband has a flooring business in Melbourne and could employ Mr Vea in their business, in which she knows he would be a good worker. Mr Vea’s cousin provided a letter of support dated 11 December 2012. She is the Youth Director of the Wesleyan Methodist Church of Australia and, in their regular telephone contact, Mr Vea has offered to help out with voluntary youth and other activities organised by the Church.

19. Apart from the above offer of employment, the Tribunal has also been provided with a letter from the owner of a concreting and temporary fencing business in Melbourne dated 29 October 2012, stating that he had employed Mr Vea as a casual worker in the past,  and he “proved to be a strong and reliable worker”. The business owner states that he would be willing to employ Mr Vea again “as my business is open for him anytime”.

20. I am satisfied from the above evidence that the likelihood of Mr Vea engaging in further criminal conduct is low. While it does not in way excuse or minimise Mr Vea’s conduct, I note that since his conviction for robbery in company in 2000, the harm caused by Mr Vea has been in a domestic setting when he has been under the influence of alcohol. He has now moved on from that relationship and has demonstrated insight into the problems caused by his use of alcohol and the possible outcome – separation from his children and family – were he to continue in the same vein. While Mr Vea has not spent time in the community since his most recent offence, I am satisfied that the prospects for his rehabilitation are excellent. I note that if released into the community he will initially be on parole, is likely to be asked to participate in drug and alcohol and anger management programs which he has expressed his willingness to undertake, and his conduct will be monitored by Community Corrections Officers in Melbourne where he will live with his father and stepmother.

    STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA

21. The second primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the strength, duration, and nature of Mr Vea’s ties to Australia. Paragraph 9.2(1) states that decision-makers must have regard to:

    a)How long the person has resided in Australia, including whether the person arrived as a young child, nothing that:

    i.Less weight should be given where the person began offending soon after arriving in Australia; and

    ii.More weight should be given to time the person has spent contributing positively to the Australian community.

    b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

22. Mr Vea first arrived in Australia on 8 December 1995 at the age of 13. He is now aged 30 and has been in Australia for 17 years. His first offending was as a juvenile, at the age of 17. All of Mr Vea’s immediate family – his parents and 11 siblings – are in Australia, and most, if not all, appear to be Australian citizens. Mr Vea also has a large extended family. The evidence of family members indicates that the family is a close one and they are very supportive of one another. Mr Vea’s parents’ evidence is that there are no family in New Zealand or Tonga. Mr Vea’s children are also Australian citizens. Both the children’s mother, Ms W, the victim of Mr Vea’s offending, and her mother who was living in the household at the time, support Mr Vea being allowed to stay in Australia.

23. The evidence indicates that Mr Vea is a caring father and has, in the past, fulfilled his parental responsibilities towards his children, including providing them with financial support, and is keen to continue to do so. Evidence from family members and members of his church also indicates that he has, in the past, volunteered in assisting in community activities and he has said that he wishes to continue doing so. His stepmother gave evidence about the practical assistance Mr Vea has given his father in his work for the church and the financial assistance he has given them is helping with their housing loan repayments.

24. Mr Vea has a good employment record, is well regarded by his employers as a reliable, hard-working and responsible employee, and I am satisfied that he is unlikely to have difficulty in securing appropriate employment in the future.

25. I am therefore satisfied that this consideration favours Mr Vea’s visa not being cancelled.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

26. The third primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr Vea’s visa is expected to be made. Where there is more than one child under 18 years old, paragraph 9.3(3) states, “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.

27. Paragraph 9.3(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements; the impact of the person’s prior conduct and any likely future conduct, and whether that has, or will have, a negative impact on the child; the likely effect that any separation from the person would have on the child; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

28. Mr Vea has three children, a six year old son  and daughters aged four and two, who live with their mother in Victoria. Mr Vea’s evidence, that of the children’s mother, Ms W, her mother (the children’s grandmother) and Mr Vea’s other family members indicates that he is a loving and caring parent to his children. Ms W said that when the domestic violence occurred, the three children were asleep and were too young to remember what happened. I have no doubt that Mr Vea wishes to play a positive parental role with his children in the future and Ms W was confident that she and Mr Vea will be able to reach a mutually agreed arrangement for the children’s future care. I note Ms W’s and her mother’s evidence that Mr Vea also has a close relationship with Ms W’s older children from a previous relationship, particularly with the younger of the two boys.

29. Mr Vea was imprisoned not long after his youngest child (who will be three in about three months) was born and Ms W’s evidence indicates he has not yet had an opportunity to establish a close parental relationship with her, although she has visited him in prison and there is regular phone contact. At most risk currently, by reason of being separated from his father, is the oldest child who is aged six. Ms W’s and her mother’s evidence indicates that this child has experienced emotional problems as a result of the absence of his father in his life while the Intervention Order was in place. Ms W and her mother both said that for Mr Vea to be deported to New Zealand would have a “devastating” effect on the children. Dr Clark said this could have a major traumatic effect on the children for which they would need counselling.

1. I am satisfied from the evidence that this consideration strongly favours Mr Vea’s visa not being cancelled.

   INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

2. The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in Mr Vea’s case.

   OTHER CONSIDERATIONS

3. As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account. However, subparagraph 8(4) states that primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr Vea's case specifically referred to in the Direction are the effect on his immediate family in Australia; any impact on business interests he may have in Australia; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and the extent of any impediments he may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.

4. There is no evidence to suggest that Mr Vea would experience any language or cultural barriers if he is returned to New Zealand. He is young and, apparently, in good health and the evidence as to his employment in Australia suggests that he would probably be able to find suitable employment in New Zealand. However, his parents’ evidence is that they have no family or friends in New Zealand, nor, since the death of his grandparents in Tonga, in Tonga. The evidence establishes that both Mr Vea’s immediate and extended family are in Australia.

5. Mr Vea is from a large and close-knit Tongan family who have a strong connection with their church. I accept the evidence of Mr Vea’s family members that Mr Vea’s removal to New Zealand would have a significant impact on the family and cause emotional hardship to his parents and to some other close family members. It would also possibly have some financial impact on his father and stepmother whom Mr Vea has, when able, assisted with housing loan repayments. For Ms W, the loss of contact with the father of three of her children would have an adverse effect in terms of shared caring arrangements and financial support.

6. The interests of family members and Ms W favour Mr Vea’s visa not being cancelled.

   CONCLUSION

7. Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The principles in paragraph 6.3 include, relevantly, affording a greater degree of tolerance to a non-citizen who has lived in the Australian community for most of their life or from a very young age, and taking into consideration the length of time the person has made a positive contribution to the community and the consequences of a visa cancellation for minor children and other immediate family members in Australia.

8. I have had regard to the primary considerations, discussed above, as required by paragraph 9(1). I am satisfied that while Mr Vea has committed serious offences in the past, his prospects for rehabilitation are excellent and the risk of his engaging in future criminal conduct is low. In my view, this is an acceptable risk that should be tolerated by the Australian community in the particular circumstances of this case. These circumstances include his strong ties to the Australian community and the best interests of his children, both of which are primary considerations favouring his visa not being cancelled. As explained above, the consequences of a visa cancellation for his immediate family members, including the mother of his children, are also significant ‘other considerations’ favouring his visa not being cancelled. The balancing exercise therefore weighs in favour of the discretion in s 501(2) of the Migration Act1958 not being exercised to cancel Mr Vea’s visa.

   DECISION

9. The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Vea’s visa.

I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

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

Associate

Dated 15 January 2013

Dates of hearing	7-8 January 2013
Date final submissions received	8 January 2013
Advocate for the Applicant	G Tremelling
Solicitors for the Applicant	Legal Aid NSW
Advocate for the Respondent	L Buchanan
Solicitors for the Respondent	Australian Government Solicitor